[Redacted], Lelia D., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 13, 2021

Appeal No. 2021003029 (E.E.O.C. Sep. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lelia D.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003029 Agency No. ARCARSON20JUL02401 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated June 8, 2021, finding that it was in compliance with the terms of a September 29, 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 period at issue, Complainant worked as a Secretary for the Department of Medicine at the Agency’s Fort Carson in Colorado.2 Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 29, 2020, Complainant and the Agency entered into the instant settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 3. The Agency agrees to: 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 reflects that Complainant retired effective March 31, 2021. 2 2021003029 (a) Within 30 days of this agreement, initiate paperwork to reassign Complainant from her current position as Secretary (OA), GS-318-07, in Department of Medicine, MEDDAC, Fort Carson, to the position of Health Systems Assistant (Office Automation), GS-0303-07, PD# EI234289, in the Warrior Recovery Center, MEDDAC, Fort Carson. Transfer will be effected within 60 days of this agreement. Due to unforeseeable possibilities, this promise shall not be subject to a breach allegation after 24 months from the date of this agreement. (b) Ensure the same or equivalent ergonomic office equipment provided by Government for Complainant’s use at her current duty location in the Department of Medicine is made available for her use at the new duty location at the Warrior Recovery Center. Specifically, Complainant will be provided the same or equivalent office chair, keyboard, mouse, mouse pad, and foot stool within 7 days of her reassignment to the Warrior Recovery Center. (c) Ensure all documented current medical restrictions are accommodated in accordance with any approved reasonable accommodation requests. By letter dated February 3, 2021, Complainant, through her representative, alleged breach of and requested that the terms of the agreement be specifically implemented. Therein, Complainant asserted that she had been performing the duties of another employee, a Medical Support Assistant, who had been on extended sick leave. Complainant further alleged that these additional duties were beyond her medical restrictions and were located in a different building. Complainant asserts that she was denied ergonomic equipment while performing these temporary duties. After no response from the Agency, Complainant filed the instant appeal and reiterated her claims of breach set forth in her February 2, 2021 letter. In addition, Complainant asserts that she was issued a Proposed Notice of Removal.3 On June 8, 2021, the Agency issued a final decision finding that no breach of the instant settlement agreement. The Agency found that a Notification of Personnel Action form reflected that Complainant was reassigned to the position of Health System Assistant, Warrior Recovery Center at Fort Carson and thus the Agency was in compliance with provision 3(a). The Agency stated that the settlement agreement does not provide that Complainant is exempt from performing additional duties. 3 The record reflects that Complainant signed a “Transition Agreement” on March 8, 2021. Therein, the Agency agreed to suspend processing the pending removal action pertaining to Complainant and Complainant agreed to retire or resign within 30 days of the execution of the Transition Agreement. 3 2021003029 The Agency found that it was not in breach of provision 3(b) of the settlement agreement. The Agency reasoned that Complainant did not allege that she was denied the specified ergonomic equipment at her new position at the Warrior Recovery Center. Rather, Complainant alleged she did not receive the equipment in a subsequent temporary position in which she was filling in for an employee on leave. The Agency found no breach of provision 3(c). Specifically, the Agency found that Complainant was instructed to adhere to her physical limitations and ask for assistance when needed. The Agency further found that there was no evidence that it failed to provide Complainant with a reasonable accommodation. 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). The Agency did not breach provision 3(a). The record contains a Notification of Personnel Action form reflecting that Complainant was reassigned to the Health Systems Assistant position in the Warrior Recovery Center at Fort Carson effective October 25, 2020. To the extent that Complainant alleges that she has been performing additional duties for an employee who has been on leave, the settlement agreement did not prohibit the Agency from assigning her collateral duties or other duties while her co-workers may be on leave. The Agency did not breach provision 3(b). To the extent that Complainant alleged that the Agency did not provide her with ergonomic equipment while temporarily performing the duties of Medical Support Assistant for an employee on leave, provision 3(b) did not obligate the Agency to take this action.4 4 The record contains a declaration under penalty of perjury from a management official. Therein, the management official asserted that Complainant was asked multiple times if she wanted someone to bring over her ergonomic chair to her temporary station while filling in for an employee on leave. The management official asserts that Complainant ultimately moved her chair to her temporary station. 4 2021003029 Rather, provision 3(b) provides for the office ergonomic equipment or the equivalent that Complainant used at the Department of Medicine to be made available at her new duty location at the Warrior Recovery Center, Complainant has not alleged that the Agency did not do this. However, to the extent Complainant alleges that she was denied a reasonable accommodation or ergonomic equipment while performing these temporary duties, she should contact an EEO Counselor if she wishes to pursue these matters in the EEO process. We find that provision 3(c) is void for lack of consideration. This provision affords Complainant nothing more from the Agency than what she is already entitled to under the law and for being an employee of the Agency. However, given that other consideration was exchanged through other provisions of the settlement agreement, we do not find that the entire settlement agreement is invalid, but rather reformed without provision 3(c). Finally, to the extent Complainant is alleging that the Agency worked her outside of her restrictions, issued her a proposed removal and forced her to retire, complainant has raised subsequent acts of alleged discrimination. Such claims are to be treated as separate complaints. See 29 C.F.R. § 1614.504(c). Thus, if complainant has not already done so, she must contact an EEO Counselor, if she wishes to pursue these claims through the EEO process. Accordingly, we AFFIRM the Agency’s final determination finding no breach of the September 29, 2020 settlement agreement. 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 5 2021003029 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. 6 2021003029 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 September 13, 2021 Date