[Redacted], Alyce R., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020005470 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alyce R.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020005470 Agency No. NY-20-0029-SSA DECISION On September 28, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding the alleged breach of a December 31, 2019 settlement agreement executed by the parties, as well as additional acts of reprisal. The record indicates that the Agency was only notified of the alleged breach two weeks earlier, on September 14, 2020, and no final decision by the Agency has been issued. Nonetheless the Agency has submitted a response to the appeal, contending the allegation is untimely. Therefore, in the interest of judicial economy and expediency, we shall construe the Agency’s response as its final decision and accept the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an Operation Supervisor at the Agency’s facility in Union, New Jersey. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 31, 2019, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 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. 2020005470 2 (1) The Agency will ensure fair treatment of all members of the Union Township, New Jersey Field Office. (2) The Agency will provide communication skills training to the entire Union Township Field Office team within ninety days of the execution of this agreement. The New Jersey Area Director’s Office in collaboration with the Civil Rights and Equal Opportunity Office will determine the content and delivery method of the training. On September 14, 2020, using an EEO complaint form, Complainant alleged both that the Agency had violated the agreement and subjected her to additional acts of discrimination. Specifically, Complainant stated that “. . . the Agency did not fulfill [its] part of the agreement and instead of providing us with training, the Agency reassigned me to [another field office].” In an attachment, Complainant describes retaliation by the Agency, to include the following matters: a detail to a less desirable duty location, a negative midpoint evaluation, and increased scrutiny of her work. Two weeks later, Complainant filed the instant appeal raising the same concerns. 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). In cases involving allegations of breach of settlement agreement, the burden is on the party alleging reach to establish that a breach has occurred. Porter v. United States Postal Service, EEOC Appeal No. 01A54699 (December 20, 2005). Moreover, EEOC Regulation 29 C.F.R. § 1614.504(a) requires a complainant to notify the Agency's EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. Here, the December 31, 2019 agreement required the Agency to provide training within ninety days. The agreement itself also, in provision (11), informed Complainant that if she believed that the Agency failed to comply with the agreement, she should notify the EEO Director, Office of Civil Rights and Equal Opportunity, in writing, within thirty calendar days of the date she knew or should have known of the alleged breach. However, based on the instant record, it appears that the Agency was not notified until September 14, 2020, months beyond the time limit. Complainant has not provided any reason for the delay. Therefore, we find that the dismissal of the breach claim is proper. 2020005470 3 As noted above, Complainant also contends that since the execution of the settlement, she has been subjected to retaliation. In her September 14, 2020 complaint form, used to allege breach and raise these new matters, Complainant acknowledged that she had not discussed the claims with an EEO Counselor. The Commission has held that claims of further discrimination and reprisal should be processed as a new, separate complaint, rather than as a breach allegation. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). Therefore, if Complainant wishes to pursue these claims through the EEO process, she must contact an EEO Counselor within fifteen calendar days of the date she receives this decision.2 CONCLUSION Accordingly, the Agency’s determination, dismissing the breach claim as untimely, was proper and is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2 For timeliness purposes, the Agency shall consider Complainant’s September 14, 2020 claim of breach as her initial EEO Counselor contact. Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998). 2020005470 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020005470 5 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 January 8, 2021 Date