0120162588
12-30-2016
Ouida L.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ouida L.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120162588
Agency No. DOIBOR150103
DECISION
Complainant timely appealed to this Commission the Agency's July 6, 2016 finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electric Reliability Program Analyst (GS-12) in the Power Resources Office ("PRO") for the Agency's Bureau of Reclamation, with the Bureau of Land Management, in Denver, Colorado.
Believing that the Agency subjected her to unlawful discrimination and harassment on the bases of sex and disability, Complainant filed a formal EEO complaint on December 19, 2014. The matter was resolved on April 3, 2015, when Complainant and the Agency entered into a settlement agreement ("the Agreement"). Under the relevant portion of the Agreement, Provision 20, the Agency agreed to:
Reassign Complainant under the direct supervision of [the Senior Advisor for Hydropower ("S2")] instead of [the PRO Manager ("S1")] effective immediately.2
Provision 20 stems from S1's alleged actions as Complainant's direct supervisor, and as one of several senior advisors named in her initial complaint who allegedly subjected her to harassment and discrimination for over a year. Specifically, Complainant alleged that S1 used his supervisory authority to block her from advancing her career by, among other things, excluding her from meetings and denying her benefits and opportunities afforded to her male colleagues. Complainant alleged that S1 could get away with retaliating against her for reporting the harassment because his wife held a senior position in the Agency's human resources office. After Complainant raised her EEO allegations, she was placed in a separate chain of command from S1 for much of the EEO process, including execution of the Agreement.
Following the Agreement, Complainant's first level supervisor was formally changed to S2, who was outside S1's chain of command. However, S2 retired from the Agency a year later. S2's newly vacant position was filled by S1, who was named Acting Senior Advisor for Hydropower. Complainant was assigned a new first level supervisor, a PRO Team Lead and Acting Supervisor ("S3") who reported directly to S1. Complainant contacted PRO management officials, citing the Agreement, and unsuccessfully requesting reassignment to a supervisor outside S1's chain of command. On April 29, 2016, Complainant formally notified the Agency, alleging that the reassignment to S3 constituted a breach of Provision 20 because "the clear and unambiguous intent of this provision was to remove [Complainant] from [S1's] chain of command." On May 19, 2016, Complainant followed up, alleging the Agency was in continued breach of the Agreement, as she had been reassigned to another Acting Supervisor ("S4") who was also within S1's chain of command.
The Agency concluded that based on the plain language of the Agreement, no breach occurred under 29 C.F.R. � 1614.504(a).
ANALYSIS
Our regulations provide that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. 29 C.F.R. � 1614.504(a) The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (Dec. 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O. v. United States Postal Serv., EEOC Request No. 05910787 (Dec. 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
On appeal, Complainant does not dispute the Agency's finding that since S1 is her second-level supervisor she is not under his "direct supervision." Instead Complainant reflects how contrary to the alleged intent behind Provision 20, the "reassignment provision," she "is once again in [S1's] direct chain of command." Applying the Plain Meaning Rule, the Agency noted that the Agreement did not state "that Complainant was not to be in S1's supervisory chain of command," and ultimately concluded that the parties' "alleged unstated intent is not reflected within the four corners of the Settlement Agreement." We agree. Complainant's declarations that Provision 20 was the "crux of the Agreement," without which she would never have entered it and that the reassignment provision "was presented as permanent during negotiations and in the Settlement Agreement" is insufficient to establish breach. Moreover, Complainant's request that we "uphold the intent" of Provision 20 by removing her from S1's chain of command, an enforcement action that is not referenced anywhere in the Agreement, is not an argument to establish breach, but rather a request that we act against our own regulations.
There are instances when an otherwise valid agreement may be void, voidable, or reformable, depending on circumstances, for example due to coercion, misinterpretation, or mistake. See Nemirow v. Dep't of the Army, EEOC Appeal No. 01930062 (Dec. 8, 1992). We find, however, that the record contains no evidence indicating that Complainant's decision to enter into the Agreement was attributable to being misled, particularly given that Complainant was represented by legal counsel. To the extent Complainant interprets the phrase, "reassign [Complainant] under the direct supervision of [S2] instead of [S1]" to mean that she is not to be reassigned to a supervisor within S1's chain of command, such interpretation should have been reduced to writing as part of the settlement agreement, and in the absence of a writing cannot be enforced. See Carter v. Dep't of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing Jenkins-Nye v. General Servs. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). For example, in Veney v. Social Security Administration, EEOC Appeal No. 0120121962 (Jul. 30, 2012) an agency and complainant entered into a settlement agreement including a reassignment provision, which the complainant requested in order to avoid an agency employee who allegedly harassed her; after the agency reassigned the complainant, the alleged harasser began to "maintain a presence" in her new location, so the complainant alleged breach of the agreement. We found no breach occurred because, even though Complainant's purpose in requesting the reassignment was to avoid an alleged harasser, the settlement agreement contained no reference to constraints being placed upon that Agency employee in the area in which Complainant has been transferred. In other words, "if Complainant wanted such constraints imposed on the Agency employee, she should have included such a provision as part of the settlement agreement." Veney citing Jenkins-Nye, supra. Likewise, Complainant cannot establish breach as a result of the agency's placing her under S1 as the second level supervisor.
CONCLUSION
Accordingly, we AFFIRM the Agency's finding that no breach occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 30, 3016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency's final decision also addressed Complainant's allegation that it breached Provision 19, however, on appeal, Complainant only references her breach claim for Provision 20, so we consider the Agency's finding of no breach for Provision 19 final and have limited our analysis to Provision 20 only.
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