U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madelaine E.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2021001875 Hearing No. 410201900080X Agency No. HHS-CDC-0441-2017 DECISION Complainant filed an appeal with this Commission from a decision issued by an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”), dated September 20, 2020, dismissing her EEO complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, and the Equal Pay Act of 1963 (“EPA”), as amended, 29 U.S.C. § 206(d) et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Associate Director for Health Equity (Health Scientist), GS-601-14, in the Office of the Director (“OD”), Office of Smoking and Health (“OSH”), at the National Center for Chronic Disease Prevention and Health Promotion, in Atlanta, Georgia. 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. 2021001875 2 On September 18, 2016, Complainant, represented by counsel, entered into a settlement agreement with the Agency to resolve her EEO complaint, Agency Case No. HHS-CDC-0306- 2016 (hereinafter “Case 2016”) at the informal counseling stage. In Case 2016, Complainant alleged that her first level supervisor (“S1”), the OSH Deputy Director, as well as the OSH Director, and the Director of the Agency’s Human Resources Office (“HRO”) subjected her to discrimination based on race and sex when they created a new GS-15 level Health Scientist position (Senior Advisor for Place-Based Research) within the OSH OD Management Team, and awarded it to a colleague (“C1”) as a noncompetitive lateral transfer. The settlement agreement provided, in relevant part: 3. The assigned CIO will submit a formal request and required paperwork to HRO not later than thirty (30) days after the date of this agreement for an official review/classification audit of [Complainant’s] position as outlined in OHR CSC SOP 500-12. However, the completion time could take longer depending on the extent of the audit process for collecting information, conducting interviews and reviewing documents. All will abide by the outcome of the desk audit. If the results of the audit is an upgrade of the position, HRO will publish a Certificate of Noncompetitive Promotion Based Additional Higher Level Duties and Responsibilities that certifies the conditions for a noncompetitive promotion are met and [Complainant] is eligible and qualified for the higher graded position. If the [Complainant] suffered a loss in grade or pay as a result of a previous classification action, [Complainant] is entitled to back-pay at an amount equal to all or any part of pay, allowances, or differentials, as applicable which the Aggrieved normally would have earned or received during the period. In essence, the parties agreed that a desk audit would be conducted and, if the results indicated that Complainant’s GS-14 position should be reclassified/upgraded to GS-15, the Agency would non-competitively promote Complainant and provide back pay to compensate her for any loss in grade or pay as a result of the prior GS-14 classification. Irrespective of the desk audit results, the parties agreed to “… abide by the outcome of the desk audit.” In exchange for the desk audit, and other consideration, Complainant agreed to withdraw Case 2016 and “not to sue [the Agency] or the officials and employees thereof, on any matter related to, or arising from [Case No. 2016] . . . to include appeals and/or requests for reconsideration before the EEOC, except as may be necessary to enforce the terms of this agreement.” Per EEOC regulations, the agreement also instructed Complainant to notify the Agency’s EEO Director within 30 days if she believed the Agency was in breach of the terms of the agreement. On March 13, 2017, HRO issued a Report of Findings (“ROF”) determining that Complainant’s position was properly classified at GS-14. Thereafter, on April 17, 2017, Complainant contacted the HRO classification team supervisor (“H1”), by phone and email, summarizing “key discrepancies” within the ROF. 2021001875 3 On May 12, 2017, HRO issued a “Report on Position Audit Findings” which is described as an “independent courtesy review…to address [Complainant’s] concerns of alleged key discrepancies in the Report of Findings from the desk audit completed for and submitted to her and her supervisor.” A different classification specialist reviewed Complainant’s desk audit, applying the Industrial Hygiene Series classification criteria, and an independent contractor with expertise on classification of federal positions was also consulted. The review concluded that Complainant’s Health Scientist position was properly classified at GS-14. Complainant formally appealed the results of the desk audit to the HRO Director. On August 25, 2017, the HRO Director issued a decision on Complainant’s final appeal of her desk audit, affirming the GS-14 classification. The decision noted marked discrepancies between Complainant’s August 10, 2017 account, and her supervisor’s August 16, 2017 account, as the supervisor denied that Complainant performed many of the higher level functions on her PD, and reiterated that Complainant performed some of the same tasks as GS-13 level employees, and characterized Complainant’s role as that of a “passive consultant role.” Following the HRO Director’s decision, Complainant initiated the instant case. On January 1, 2018, Complainant filed a formal EEO alleging that the Agency discriminated against her on the bases of her race (Black/African American), sex (female), and reprisal for prior protected EEO activity (Agency Case No. HHS-CDC-0306-2016) when: 1. On August 25, 2017, the Director of the Agency’s Human Resources Office (“HRO”) determined, through an audit, that Complainant’s position was properly classified as a GS-14 instead of a GS-15; and 2. On August 25, 2017, she was made aware that two of her male coworkers (one white, one Hispanic) were not qualified for their positions, and had erroneous job criteria on their position descriptions (“PDs”) to get their positions classified at a higher grade level. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. However, on June 14, 2019, the Agency filed a motion to dismiss the complaint with the AJ for failure to state a claim. The Agency argued, “Complainant is barred from challenging the desk audit outcome due to the terms of the previously negotiated settlement agreement.” Further, the Agency asserted that Complainant was obligated to adhere to the agreement terms and that it was in compliance. According to the Agency, Complainant had not alleged breach of the agreement and if she was dissatisfied with the desk audit the proper forum to raise her concerns were with the Office of Personnel Management. Complainant responded to the motion, contending that the instant complaint does not raise identical claims to those in the prior case. 2021001875 4 Specifically, Complainant argued that Case 2016 alleged she "was not presented with a reasonable opportunity to compete for a different position of a higher grade due to her race and gender”, but in the instant case she is claiming there was discrimination in both the criteria used and the manner the desk audit was performed. On September 23, 2020, the AJ granted the Agency’s motion. The AJ agreed that Complainant had not alleged breach of the settlement agreement and therefore had no grounds for a new complaint. Additionally, the AJ noted that the agreement did not require the Agency to utilize the criteria identified by Complainant and so the Agency did no breach the agreement by conducting the desk audit as it did. The AJ further determined Complainant did not allege a subsequent action of discrimination. Because the Agency did not issue a final order within 40 days of receipt of the AJ's decision, the decision of the AJ became the final action of the Agency. See 29 C.F.R. 1614.109(i). It is from this decision that Complainant appeals. ANALYSIS AND FINDINGS Failure to State a Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, the AJ granted the Agency’s motion to dismiss the complaint for failure to state a claim. We agree. We find that, in claim 1, Complainant, in essence, is challenging the outcome of the desk audit conducted in accordance with the September 2016 settlement agreement. In addition to requiring the desk audit, the agreement language specifically provides that “[a]ll will abide by the outcome of the desk audit.” Yet, by filing the instant complaint, Complainant seeks to evade such obligation. Based on the record, we determine there is no evidence that the Agency did not conduct the agreed-upon audit in good faith. As previously noted, Complainant expressed her dissatisfaction with the desk audit results, and the Agency even responded with more than one independent review. In sum, Complainant cannot now attempt to challenge the results of the good faith audit reached through the settlement agreement by filing another EEO complaint. 2021001875 5 Breach of Settlement Despite Complainant’s contention that she is not alleging breach, the AJ proceeded to find that the criteria utilized by the Agency in conducting the desk audit did not violate the terms of the agreement. The Commission has previously addressed similar situations. In Lu T. v. Department of Defense, the complainant alleged that during a desk audit, conducted in accordance with a settlement agreement, her supervisor omitted relevant information and provided inaccurate descriptions of her job duties, “virtually insuring [that her] bid for an upgrade would fail.” EEOC Appeal No. 2020004791 (Sept. 27, 2021). The underlying EEO complaint in Lu T., resolved by settlement, concerned claims that the complainant was performing the same duties at a lower grade and for less pay than colleagues outside of her protected categories. The Commission determined that the complainant in Lu T. was alleging a breach of settlement, not a new claim of discrimination. Further, the Commission found that the AJ properly applied a breach of settlement analysis and correctly determined the Agency was in compliance. In particular, the Commission emphasized the Agency’s proffered evidence that it conducted the desk audit in accordance with its standard operating procedures (“SOP”). 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). 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). The plain language of Provision 3 requires “for an official review/classification audit of [Complainant’s] position as outlined in OHR CSC SOP 500-12.” The instant record supports that the Agency conducted the desk audit in accordance with the agreement using OHR CSC SOP. While Complainant argues that the HRO Director’s August 25, 2017 decision failed to acknowledge her PD and “[t]he main reason given for not classifying my position at the GS-15 level is that my supervisor did not acknowledge that I was working at the GS-15 level based on a set of questions provided to her by HRO” the record establishes that the Agency’s reliance on input from the supervisor was consistent with HRO SOP. 2021001875 6 If Complainant wanted the desk audit to be based on her PD, or did not want the desk audit to consider input from the supervisors she named in her prior EEO complaint, then she should have had her intentions reduced to writing in the settlement agreement. See, e.g. Nakesha D. v. Dep’t of the Army, EEOC Appeal No. 0120161782 (Oct. 11, 2016) (no breach where the agency agreed to conduct a classification review and failed to include the complainant’s duties as a project manager, as “nothing in the Agreement specifies how much weight these temporary duties should receive in making the classification,” and the agency provided evidence that audit conduct in accordance with SOP). As for Complainant’s assertions in Claim 2, we find that they are merely an elaboration of Claim 1. In claiming that coworkers are not qualified for their positions, or are overpaid, Complainant has not alleged a personal harm or loss to a term, condition or privilege of her employment. Nor does the claim reflect a breach of the settlement agreement. The plain language of the agreement does not require a comparison of Complainant’s position with that of other employees, only that she be provided with a desk audit. Equal Pay Act Lastly, we address Complainant’s contention that the Agency violated the Equal Pay Act (EPA). The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (Sept. 12, 2000), reconsideration denied, EEOC Request No. 05A10076 (Aug. 12, 2003). Complainant asserts that the HRO Director’s August 25, 2017 final determination affirming the results of her desk audit constitutes a discriminatory compensation decision, which is actionable under the EPA. Likewise, she argues that her continued compensation at the GS-14 level, in light of the two new GS-15 Health Scientist positions on the OSH OD Management Team, violates the EPA. Ultimately, both assertions amount to a challenge of the desk audit the Agency conducted pursuant to the agreement. Due to the settlement agreement, requiring the desk audit be conducted and that the parties “abide by the outcome of the desk audit”, Complainant is precluded from challenging the outcome of the audit. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the September 2016 agreement bars Complainant from pursuing the claims in the instant complaint. 2021001875 7 CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 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. 2021001875 8 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 September 13, 2022 Date
