[Redacted], Delphia F., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2020005521 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Delphia F.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020005521 Agency No. 19-00421-00942 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated September 1, 2020, finding that it was in compliance with the terms of a February 18, 2020 settlement agreement. 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 period, Complainant worked as a Property Program Manager at the Agency’s Naval Air Warfare Center Aircraft Division (NAWCAD), a subordinate command to the Naval Air Systems Command, F-35 Joint Program Office at Patuxent River, Maryland. On February 18, 2020, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued in the EEO complaint process.2 The February 18, 2020 settlement agreement contained, in pertinent part, the following provisions: 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 record indicates the settlement agreement includes resolution of a June 3, 2019 complaint filed with the Office of Special Counsel (OSC MA-19-3783), a March 28, 2019 formal complaint (DON Docket No. 19-00421-00942), and EEOC Appeal No. 2019004395 (Sept. 17, 2019). 2020005521 2 Provision 4.b: The Agency shall restore all sick leave used by the Complainant from, and including, September 3, 2019, until the date that is the Complainant’s start date3 of her new position as set forth in sub paragraph c below.4 The sick leave will be restored in two phases as set forth herein: 1. The Agency shall, within fifteen (15) business days of the Effective Date of this agreement, submit to the DFAS all necessary documentation to initiate restoration of all sick leave used by Complainant from September 3, 2019, through the date of this agreement and the Agency will provide Complainant with the DFAS REMEDY number. 2. With the exception of when Complainant is in travel status as further described in Paragraph 4.d below, Complainant will remain on sick leave until the start date of her new position as described in Paragraph 4.c below. The Agency shall, within fifteen (15) business days of the Complainant’s start date at her new position submit to the DFAS all necessary documentation to initiate restoration of all sick leave that the Complainant used from the date of this Agreement until the start date of the Complainant’s new position. The Agency shall provide the DFAS REMEDY number to Complainant within ten (10) business days after receipt. Provision 4.c: Complainant shall receive a permanent reassignment to serve as a Program Manager in the Training Services Division (TSD) Aviation Directorate, located in Orlando, Florida. Complainant will remain a GS-14 equivalent and will retain her current base salary, Complainant understands that upon her relocation to Florida, she will no longer receive Washington, D.C. locality pay. Provision 4.d: Complainant’s reassignment will be treated as a Permanent Change of Station (PCS) transfer, and Complainant shall receive all of the benefits that she is eligible for thereunder. In addition to the non-discretionary PCS benefits to which [Complainant] is entitled under a PCS transfer, the Agency agrees to provide Complainant with the following: (1) a single House Hunting Trip; (2) Temporary Quarters Subsistence Expense; and (3) Privately Owned Vehicle (POV) Transportation. Each of the above-listed discretionary benefits will be provided subject to the limitations established under Joint Travel Regulation Chapter 5, Part F. 3 Restoration of Complainant’s sick leave will cease as of the start date of her new position. The start date will be provided by the Training Services Division (TSD). 4 Complainant understands that during her house hunting trip, and her move she will be in a travel status, and therefore will not declare this time as sick leave on her time card. 2020005521 3 On July 24, 2020, Complainant, through counsel, alleged breach of the February 18, 2020 settlement agreement. Specifically, Complainant alleged that the Agency breached the agreement when it changed her leave from sick to administrative leave. Complainant noted that the terms of the settlement agreement stated that Complainant would remain in sick leave status until the start date of her new position as described in Provision 4.c. On August 20, 2020, the Agency responded to Complainant’s breach claim. The Agency indicated that it had, to date, restored 1, 457 hours of sick leave to Complainant. The Agency explained that the Enterprise Resources Planning System (ERP), the Agency’s financial system of record, limits the amount of sick leave granted in any given year to 104 hours. Consequently, the ERP system would reject any sick leave hours added exceeding 104 hours. However, the Agency indicated that in order to restore all of Complainant’s sick leave hours, the Agency recoded Complainant’s sick leave, coded as “LS,” in the ERP to an alternative coding of “LN” which is administrative leave. The Agency further provided a sworn statement from the Financial Management Analyst Payroll (Financial Analyst) who testified that 1,457 hours of sick leave was restored, and changing Complainant’s leave from LS to LN increased Complainant’s available sick leave balance without affecting Complainant’s year-to-date balance. On August 22, 2020, Complainant, through counsel, filed a rebuttal and still alleged that the Agency had breached the settlement agreement. On August 30, 2020, Complainant further submitted an additional inquiry to the Agency regarding why Complainant’s reassignment was classified as a Management-Directed Reassignment (MDR) instead of a PCS transfer as specified in the settlement agreement. In its September 1, 2020 final decision, the Agency found no breach of the February 18, 2020 settlement agreement. The Agency explained that Complainant was never placed on administrative leave. Rather, the Agency stated that the “recording of leave is nothing more than a mechanism that allows [Complainant’s] sick leave to be restored.” The Agency further explained that the LN code was used as a “triggering mechanism to restore sick leave” because any attempt to add sick leave during a single year exceeding the allowed 104 hours would have been rejected by the ERP. Because Complainant was not placed on sick leave, the Agency indicated that Complainant’s argument that she was subjected to a ten-day limitation placement on administrative leave, pursuant 5 USC 6329a, was not relevant. The Agency also noted that 5 USC 6329a had not been implemented, and was therefore, not applicable. Regarding Complainant’s transfer, the Agency explained that it is within the Agency’s discretion to determine the method of implementing Complainant’s reassignment. The Agency noted that a PCS move is allowed when it is in the government’s best interest. The Agency further explained that, pursuant to Joint Travel Regulation 053705, a PCS move is in the government’s best interest when it is a management-directed move. The instant appeal followed. On appeal, Complainant argues, through counsel, that the Agency violated the settlement agreement on two grounds. 2020005521 4 First, Complainant alleges that the Agency breached the agreement when it placed Complainant on administrative leave instead of sick leave. Complainant further argued that her placement on administrative leave also violated 5 USC 6329a(b)(1), which restricts employees from being on administrative leave for no longer than ten days a year. Second, Complainant argues that the Agency breached the settlement agreement when it decided to process her reassignment as an MDR instead as a PCS transfer. Complainant further notes that she is not eligible for an MDR because she is not fully qualified for the position to which she is being transferred. Complainant indicates that she must complete a certification for the position before she is fully qualified and a reassignment by MDR transfer requires that either the employee is fully qualified for the new position or the Agency must modify or waive the qualifications for the position. Complainant asserts that the Agency has failed to modify for waive the required qualifications. Complainant further asserts that a PCS transfer would negate the need for an MDR. 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). Provision 4.b: Restored Sick Leave The essence of Provision 4.b requires the Agency to restore Complainant’s sick leave used from September 3, 2020, until the start date of her new position as a Program Manager at the TSD in Orlando, Florida. The record indicates that Complainant’s initial start date was July 5, 2020, but this date was subsequently extended. As of September 20, 2020, Complainant’s start date has been extended again a new start date is to be determined by the TSD. 2020005521 5 The record contains another sworn affidavit, dated November 2, 2020, from the Financial Analyst indicating that as of October 30, 2020, Complainant had been restored 1,982 hours of sick leave. The Financial Analyst testified that all leave used by Complainant beginning on September 4, 2019, was entered into the ERP as sick leave and remained as sick leave until it became necessary to restore Complainant’s leave, and it was recorded to administrative leave. The Financial Analyst further indicated that, pursuant to Chapter 5 of the Federal Code of Regulations, section 630.401(b), any additional leave exceeding the year-to-date balance would be rejected by the ERP. As a result, the Financial Analyst explained that in order to restore Complainant’s sick leave, “it [was] necessary to tell the system that sick leave was not used” and to recode Complainant’s hours as LN (administrative leave) in an effort to increase Complainant’s available sick leave balance without affecting the year-to-date balance. The Financial Analyst noted that Complainant’s leave was restored on four occasions (January 18, 2020, February 29, 2020, June 6, 2020, and October 29, 2020) as requested. An ERP report confirms that Complainant’s leave was initially entered as LS (sick leave) and was changed to LN (administrative leave) on the specific dates that Complainant’s sick leave was restored. Additionally, email correspondence in the record supports that the Agency informed Complainant, as early as February 25, 2020, that her leave charged as LS would be changed to LN in an effort to restore her leave. Because the record reflects that Complainant’s recorded leave in the ERP system is simply a mechanism for restoring Complainant’s sick leave, Complainant has remained in sick leave, not administrative leave, status during the period her TSD start day has been pending. Consequently, any discussion of whether the Agency violated 5 U.S.C. § 6329a is irrelevant. Therefore, we find, for the reasons discussed above, that the Agency did not violate Provision 4.b when it recoded Complainant’s leave from LS to LN in order to restore Complainant’s sick leave without violating 5 C.F.R. § 630.401(b). Provisions 4.c and 4.d The provisions at issue specify that Complainant’s permanent reassignment from Property Program Manager with NAWCAD to the position of Program Manager position with TSD in Orlando, Florida would be classified as a PCS transfer. There is no indication in the record that Complainant was not qualified for the TSD position. The record included an August 26, 2020, email instructing Complainant to register for a course to attain Level 1 DAWIA International Certification. However, there is no reference that Complainant was not otherwise qualified for the position. We further note that the record indicates that the Agency completed Complainant’s reassignment as an MDR in order to give Complainant the PCS benefits provided in the settlement agreement. Specifically, a NAWCAD Civilian Personnel Travel Transportation and Relocation Specialist (Travel Specialist) testified, in a November 2, 2020 affidavit, that two Joint Travel Restrictions 2020005521 6 (JTRs) support the Agency’s decision to use an MDR. The Travel Specialist explained that JTR 053705(A) specifies that “PCS travel is only appropriate when the reassignment is in the Government’s interest.” The Travel Specialist further explained that JTR 053705(C) “defines a move as being in the Government’s best interest when it is a management-directed move.” Consequently, the Travel Specialist testified that “PCS travel and transportation allowances cannot be approved unless there is a management-directed reassignment.” As a result, Complainant could only receive the PCS benefits if her transfer was a management directed move. Additionally, there is no indication from the record that Complainant would be harmed by the MDR. Notably, Complainant’s SF-50, pursuant to OPM’s Guide to Processing Personnel Actions, would only indicate that she was reassigned and would not include any notation that her reassignment was management directed. Therefore, we find that the Agency did not breach provisions 4.c and 4.d of the settlement agreement when it completed Complainant’s transfer as an MDR. CONCLUSION The Agency’s finial decision finding no breach of the February 18, 2020 settlement agreement is 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 2020005521 7 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. 2020005521 8 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 February 9, 2021 Date Copy with citationCopy as parenthetical citation