[Redacted], Hallie X., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2021002086 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hallie X.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2021002086 Agency No. NPS-11-0536 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) seeking a determination as to whether the Agency had complied with the terms of the settlement agreement into which the parties entered. The record reflects the Agency was notified of the breach on August 17, 2020. No final decision has been issued by the Agency. Nonetheless, the Agency has submitted a response to the appeal contending that it has complied with the agreement terms. 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 At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst, GS-12, at the Agency’s Ocmulgee Mounds National Historical Park in Macon, Georgia. Believing that the Agency subjected her to unlawful discrimination, Complainant initiated the EEO complaint process. On April 22, 2013, Complainant and the Agency entered into a settlement agreement (“the Agreement”) to resolve the matter. The 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. 2021002086 2 (1) The Agency will remove Complainant’s June 13, 2011 Letter of Reprimand from her official personnel file effective June 13, 2013. On August 17, 2020, Complainant was issued an Advanced Notice of Proposed 5-day Suspension (“the Suspension Notice”). By e-mail from Complainant’s representative to the Agency dated August 17, 2020, Complainant alleged that, based on information contained in the Suspension Notice, the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that the Agency failed to remove the June 13, 2011 Letter of Reprimand from Complainant’s file as shown by the Suspension Notice. The Suspension Notice stated, “[a]dditionally, there have been approximately 9 years since your first suspension and the Letter of Reprimand you have received…” Complainant, through her representative, stated this constituted a breach of the Agreement as it could only be a reference to the June 13, 2011 Letter of Reprimand which should have been removed from Complainant’s file. Receiving no response from the Agency, Complainant’s counsel requested a status update in November 2020. He was informed the Agency was currently processing Complainant’s claim. Having yet to receive a final agency decision on the claim of breach of settlement agreement, Complainant filed the instant appeal. On appeal, Complainant alleges that the Agency has neither ruled on her claim of breach nor taken action to correct the violation. Complainant therefore argues she has to right to file an appeal with the Commissions pursuant to 29 C.F.R. § 1614.504(b). In support of her appeal, Complainant contends the Agency’s actions demonstrate that the June 13, 2011 Letter of Reprimand improperly remains available for reference by management officials. She contends it was weighed as part of the 2020 proposed suspension and from there by the deciding official who imposed a two-day suspension. The Agency contends on appeal that it did not breach the Agreement. The Agency states the plain reading of the Suspension Notice makes clear that it references a February 10, 2020 Letter of Reprimand and not the June 13, 2011 Letter of Reprimand. The Agency points to the language in the Suspension Notice which described Complainant’s prior discipline as a previous suspension in December 2011 and a Letter of Reprimand issued in February 10, 2020, contending “the wording of the [Suspension Notice] clearly shows that the Agency was referring Complainant’s 2011 suspension and 2020 Letter of Reprimand, and not the 2011 Letter of Reprimand.” The Agency further argues that the September 3, 2020 Notice of Decision on Proposed 5-Day Suspension demonstrates that the Agency did not breach the Agreement because it “specifically listed the two incidents of misconduct considered for Complainant’s Proposed Suspension: ‘a 5-Day Suspension on record from December 2011 for Failure to Follow Directives and Discourteous Conduct, and a Letter of Reprimand for Failure to Perform in the Duties of Your Position and Failure to Adhere to Leave Request Instructions issued on February 10, 2020.’ These two incidents were the only two incidents of misconduct contained in Complainant’s e-OPF at that time and no other instances of prior misconduct were found in Complainants e-OPF.” 2021002086 3 Lastly, the Agency contends the September 3, 2020 Notice of Decision on Proposed 5-Day Suspension “explicitly addressed Complainant’s unfounded allegation that the [Notice] mentions the 2011 Letter of Reprimand” and thus Complainant’s allegations of noncompliance are unfounded. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504(a) provides where a complainant believes that an agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the agency EEO Director, in writing, of the alleged breach within 30 calendar days of when the complainant knew or should have known of the alleged noncompliance. Further, 29 C.F.R. §1614.504(b) provides that the agency shall resolve the matter and respond to the complainant in writing; and, if the agency fails to respond or if complainant is not satisfied with its response, complainant may file an appeal with this Commission 35 days after the date he/she served the agency with breach allegations. As an initial matter, we find that Complainant was within her rights to file an appeal with the Commission since it has been more than 35 days since she notified the Agency of the alleged breach. 29 C.F.R. §1614.504(b). However, the Agency’s response on appeal will be construed as its final decision. 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 cases involving allegations of breach of settlement agreement, the burden is on the party alleging breach to establish that a breach has occurred. Porter v. U.S. Postal Serv., EEOC Request No. 01A54699 (December 20, 2005); Alyce R. v. Social Security Administration, EEOC Request No. 2020005470 (January 8, 2021). Here, Complainant has not established that the Agency breached the Agreement. While she argues the Suspension Notice referenced the 2011 Letter of Reprimand that was the subject of the settlement agreement, we are not persuaded. 2021002086 4 The Suspension Notice specifically states, “[i]t is noted that you were previously suspended for 5 days on December 26, 2011 for Failure to Follow Directives and Discourteous Conduct which was not used to determine this penalty, attachment 24. On February 10, 2020, you were issued a Letter of Reprimand for failing to adhere to leave request instructions and for failure in performing the duties of your position, attachment 25.” It further references “your recent Letter of Reprimand for similar misconduct” in reference to the current charges of misconduct alleged in the Notice. The full text of the paragraph containing the reference to 9 years ago states: “I find there is potential for rehabilitation as you have been a Federal employee for a substantial amount of time. Additionally, there had been approximately 9 years since your first suspension and the Letter of Reprimand you received; therefore, I am hopeful that this suspension will serve as the minimum penalty necessary to correct your behavior.” A fair reading of the Notice would indicate it was referring to 9 years between Complainant’s December 2011 suspension and the February 10, 2020 Letter of Reprimand. Complainant has provided no other evidence to support that the June 13, 2011 Letter of Reprimand remains in her file or is available for management to review. Thus, Complainant has failed to establish that a breach of the Agreement has occurred. CONCLUSION Accordingly, the Agency’s decision was proper and 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 2021002086 5 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. 2021002086 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 July 12, 2021 Date