[Redacted], Donella D., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2021001613 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donella D.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. Appeal No. 2021001613 Agency No. BEP-19-0684 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated February 4, 2020, finding that it was in compliance with the terms of a May 10, 2019 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 time, Complainant worked as a Facilities Support/A&E Construction Contracting Officer at the Agency’s Bureau of Engraving and Printing facility in Washington D.C. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 10, 2019, Complainant and the Agency entered into a settlement agreement to resolve the matter. The May 10, 2019 settlement agreement provided, in pertinent part, that the Agency would undertake the following action: 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. 2021001613 2 b. Provide the Aggrieved with the option of a cash award or a Quality Step Increase (QSI) if she receives an annual appraisal rating of Outstanding for Fiscal Year 2019. Complainant sent an email dated December 20, 2019, to the Agency, claiming breach of provision (b). Specifically, Complainant alleged that on November 12, 2019, a manager whom she has previously accused of harassment, was appointed as the reviewing official for the annual appraisal identified in claim (b), three days before she was scheduled to receive her appraisal. Complainant claimed that this manager would not sign her appraisal unless it was downgraded from a 4.5 to 4.0. According to Complainant, she would have been rated 4.5 and would have been given a QSI. Complainant argues, however, that due to this manager, she received a 4.0, thereby precluding receipt of either an award or a QSI. Complainant claimed that the “discrimination is rampant in this organization and I am caught in the crossfires.” In its February 4, 2020 final decision, the Agency concluded that it did not breach claim b. The instant appeal followed. ANALYSIS AND FINDINGS 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, we find that the Agency did not breach claim (b) of the subject agreement. Provision (b) provided an express obligation for the Agency to provide Complainant with the option of either a cash award or a QSI, contingent upon Complainant’s receipt of an Outstanding appraisal for Fiscal Year 2019. Complainant did not receive an Outstanding rating, by her own admission, and therefore was precluded from the options available under provision (b). We note further that the parties are bound by the four corners of the settlement agreement which provides no options if Complainant disputed her rating. 2021001613 3 We acknowledge that Complainant has asserted that she was given a less-than Outstanding rating in reprisal for prior protected activity. If Complainant determines that she was the recipient of an inappropriate rating, she is advised to contact an EEO Counselor in order to file a new complaint alleging unlawful retaliation. In that regard, we note that the Agency found that on December 30, 2019, Complainant initiated EEO counseling regarding the issue of her appraisal rating. The Agency also noted that Complainant’s December 18, 2019 breach claim may be considered as part of her EEO counseling. CONCLUSION The Agency’s decision finding it was in compliance with provision (b) of the May 10, 2019 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 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). 2021001613 4 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. 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 May 19, 2021 Date