0120181085
07-12-2018
Rafaela B,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rafaela B,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181085
Agency No. ARIRWIN10FEB1206
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated October 24, 2017, 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 second compliance action, Complainant worked at the Agency's 916th Support Brigade, National Training Center facility in Fort Irwin, California.
On March 11, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(3c) The Agency agrees, within sixty (60) days of the effective date of this Agreement, to promote Complainant to a GS-13, effective retroactively to December 16, 2012. Complainant will be entitled to back pay pursuant to the Back-Pay Act and all other incumbent benefits, including, but not limited to, step increases, TSP contributions etc. to be issued within ninety (90) days of the effective date of this Agreement. Complainant will also continue to receive the Quality Step Increase that she received in or around 2015.
On June 23, 2016, the Agency issued its first breach decision concluding that the settlement agreement was void as a result of a mutual misunderstanding regarding provision 3(c) because the Agency determined it could not promote Complainant to a GS-13 position while she remained on a GS-12 position description. Complainant appealed the Agency's decision.
We ruled in Complainant v. Department of the Army, EEOC Appeal 0120162503 (January 26, 2017), that the Agency had not complied with the Agreement provision that required Complainant's "promotion to GS-13." We remanded the matter back to the Agency to allow Complainant to make the choice between: (1) reinstating her initial EEO complaint, following her return of the benefits that she already received under the agreement; or (2) accepting a reformation of the settlement to either modify provision 3(c) to indicate that she will be promoted to a GS-13 with an appropriate GS-13 position description or (3) to completely delete provision 3(c). Through her attorney, Complainant elected to "modify Paragraph 3(c) to provide that she will be promoted to a GS-13 position with an appropriate corresponding GS-13 position description under the supervision of [a named supervisor]." Complainant's attorney added that a GS-13 position description had been developed, which the Agency should find acceptable to satisfy the modification of the agreement.
After determining that the drafted position description did not support a GS-13 level, the Agency then placed Complainant in a GS-13 supervisory position, removing her from the Union bargaining unit.
By letter to the Agency dated July 16, 2016, Complainant alleged that the Agency was still in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to place her in a non-supervisory GS-13 position, as to which a position description was drafted by the Agency and included in the record as Exhibit 4. The position was identified as a GS-13, Logistics Management Specialist position description. In a memorandum dated April 7, 2017, the Agency provided a Compliance Report which indicated that "CPAC continues to look for a position for [Complainant]."
On September 26, 2017, the Agency decided that, in order to place Complainant in "an appropriately classified GS-13 position, she would have to be promoted into a Supervisory Logistics Management Specialist position in her same section." The Agency allowed Complainant to remain under the supervision of the named management official whom she requested in her modification. The Agency issued an informal determination. The last document provided by the Agency was in the form of a compliance report (Exhibit 5). On October 24, 2017, the Brigadier General sent Complainant a letter offering her another change to elect from three options. Complainant filed this appeal two months later.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agreement required her promotion to a non-supervisory bargaining unit position. She argues that any actions that one would not reasonably expect to flow from the language of the agreement should not be included within the interpretation of the agreement. She further contends that forcing her into a supervisory role was a new act of retaliation.
The Agency contends that Complainant chose to be promoted a GS-13 position with an appropriate corresponding GS-13 Position Description. The only appropriately classified GS-13 position for which Complainant qualifies was the supervisory position which it offered. The Agency also argues that Complainant's appeal is three months late and requests that the Commission dismiss the appeal.
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides 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. 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 (December 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 (August 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. U.S. Postal Serv., EEOC Request No. 05910787 (December 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).
In the instant case, the Agreement at Paragraph 3(c) required Complainant's promotion to a GS-13 position, effective retroactively to December 16, 2012. We previously found there was a breach of the Agreement with regard to that provision. We ordered that Complainant be provided an option to reinstate her initial complaint or to modify the Agreement. By letter dated March 3, 2017, Complainant elected to modify Paragraph 3(c) of the Agreement to "provide that she will be promoted to a GS-13 position with an appropriate corresponding GS-13 position description under the supervision of [a named] supervisor." She wanted to retain the promotion to a GS-13 position. As we noted in our earlier decision, "a promotion to GS-13 included the associated (GS-13) position description." Complainant had declined the supervisory position and still maintains that the Agency is trying to force upon her new terms or amendments to the EEO settlement agreement.
Both parties acknowledge that the Agreement says nothing about changing Complainant from a bargaining unit employee to a supervisory employee.
The Agreement simply required the Agency to retroactively promote Complainant to a GS-13 position. The record lists the steps the Agency has taken to comply with its obligation to promote Complainant to a GS-13 position. The Agency sent her resume and consideration for three vacant GS-13 positions located at Fort Irwin, California. The Agency asked for Complainant to be given Army-wide consideration. The record also demonstrates that, on October 11, 2017, the Agency offered Complainant a Supervisory Logistics Management Specialist, GS-0346-13 position. We understand the position is located at her current duty location and that she is assigned to the supervisor whom Complainant requested, by name, in her modification request.
To the extent that there had been a breach, we find that the Agency cured the breach. For these reasons, we find that Complainant failed to show that the Agency is in non-compliance with Paragraph 3(c) of the Agreement.
Finally, to the extent that Complainant believes that the Agency has engaged in acts of retaliation subsequent to the signing of the Agreement, she may bring her claims to the attention of an EEO Counselor.
CONCLUSION
Accordingly, we AFFIRM the Agency's breach determination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 such 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
July 12, 2018
__________________
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.
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