[Redacted], Grady K., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 24, 2021

Appeal No. 2021000970 (E.E.O.C. Feb. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Grady K.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000970 Agency No. 200P05932017103513 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a October 14, 2020 Final Agency Decision (“FAD”) 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 Industrial Hygienist (“IH”), GS-12, at the Agency’s South Nevada Healthcare System, Las Vegas VAMC, located in Las Vegas, Nevada. On September 7, 2017, Complainant and the Agency entered into a settlement agreement (“the Agreement”) to resolve an EEO complaint in which Complainant alleged discrimination by the Agency. Under Provision 2 of the Agreement, the Agency agrees to: 2(a) Change [Complainant’s] first line supervisor/direct report from [his prior supervisor “S1”] to the Supervisory Engineer, Operation, Engineering Service, which is currently [“S2”]. 2(b) Change [Complainant’s] position description to reflect this change in 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. 2021000970 2 supervision for [Complainant’s] IH position. 2(c) At [Complainant’s] option, move [Complainant’s] office location to the Boiler Plant office area. On September 3, 2020, the Agency received written notice from Complainant, alleging that it was in breach of The Agreement of the Agreement, and requesting that his underlying complaint be reinstated. Specifically, Complainant alleged that in July 2020, the Acting Associate Director and the Chief of Engineering agreed to realign his position without notice. The record includes the following facts: After Complainant entered into the Agreement on September 7, 2017, he transferred from the Office of the Associate Director, to work in Occupational Safety, Health and Environment (“OSHE”), which was organized under the Engineering Service. Complainant initially reported to S2 as his new supervisor. When S2 left the Agency, he reported to the Assistant Chief, who assumed the role of Acting Supervisory Engineer, Operation, Engineering Service, allowing the Agency remained in compliance with the Agreement. On July 20, 2020, Complainant received a memorandum notifying him that a realignment would take place effective August 2, 2020. The memorandum clarified that despite this change in circumstances, Complainant’s position, work location, and tour of duty would not be impacted. In addition, following the realignment, Complainant would continue to report to the (Acting) Supervisory Engineer, Operation, Engineering Service, as his first line supervisor. However, as a result of the realignment, OSHE would be moved from the Engineering Service to the Office of the Associate Director, allegedly violating the Agreement. The Agency’s FAD concluded that no breach occurred. 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 (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). 2021000970 3 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). Complainant does not explain how the Agency’s action of realigning his position without notice constitutes breach, as it did not impact his first level supervisor. Nothing in the plain language of the Agreement prevents the Agency from realigning Complainant’s position to the Office of the Associate Director. Regardless of the July 20, 2020 memorandum and the Chief Engineer’s statements in the record that contradict Complainant’s allegation that he was denied notice of the realignment, the Agency was not obligated to provide notice as a condition in the Agreement. If Complainant wanted to prevent the Agency from realigning his position to another office, or provide advance notice of realignment, he should have included such provisions as part of the Agreement. See Veney v. Soc. Sec. Admin., EEOC Appeal No. 0120121962 (Jul. 30, 2012) citing Jenkins-Nye v. Gen. Servs. Admin., EEOC Appeal No. 01851903 (Mar. 4, 1987). We find that Complainant has not identified a breach of the Agreement under the plain meaning rule. Assuming, for the sake of argument, that the realignment and alleged failure to provide Complainant with notice of the realignment, alleged a breach of the Agreement, the Agency has established that due to a change in circumstances, it can no longer maintain full compliance. We have long held that where an individual bargains for a position, without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties as providing infinite employment in an exact position forever. Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). For instance, in Buck v. Department of Veterans Affairs, we determined that no breach occurred after the agency reassigned the complainant to a different position in accordance with a settlement agreement, the complainant worked in the position for over a year, and then the position was reclassified and ultimately downgraded. See EEOC Appeal No. 01A12839 (Jul. 6, 2001). Moreover, in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. See, e.g. Parker v. Dep’t of Def., EEOC Request No. 05910576 (Aug. 29, 1991) (agreement that did not specify length of service for position to which complainant was promoted was not breached by the temporary detail of complainant two years after the execution of the settlement agreement), Gomez v. Dep’t of the Treas., EEOC Request No. 05930921 (Feb. 10, 1994). We have found a breach of settlement despite a change in circumstances, where it can be shown that the Agency acted in bad faith. For instance, if the Agency is aware of a change in circumstances at the time the parties enter the settlement agreement, but does not disclose them to the complainant, to their detriment. See, e.g. Suter v. United States Postal Serv., EEOC Appeal No. 0120093523 (Oct.19, 2010) (finding breach, and that the agency acted in bad faith when it agreed to place the complainant in a custodial position at a specific building that it knew was scheduled to close in six months, yet failed to disclose this information before she signed the settlement agreement). 2021000970 4 Here, there is no dispute that the Agency fully complied with the Agreement for nearly three years. We find this to be “reasonable amount of time” in light of the change in circumstances arising from the realignment. There is no evidence that the Agency withheld information from Complainant when the parties entered into the Agreement, as the realignment was at the direction of a new Safety Chief. We also note that the Agency demonstrated a good faith effort to honor the Agreement. Despite the realignment, the Agency adhered to nearly all elements of The Agreement. It also anticipated Complainant’s possible concern over a transfer to the Office of the Associate Director. It appears that the Agency took the underlying EEO complaint into consideration when implementing the realignment, as the record states, multiple times, that Complainant’s possible concerns about working within the Office of the Associate Director again no longer existed. Prior to the realignment, S1, Complainant’s alleged harasser in the underlying complaint, already left the Agency and new leadership was in place. CONCLUSION Accordingly, we AFFIRM the Agency’s determination that no breach occurred. 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 2021000970 5 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. 2021000970 6 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 24, 2021 Date