[Redacted], Zada C., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2021003063 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zada C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2021003063 Agency No. ARS-2009-00467 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated March 22, 2021, finding that it was in compliance with the terms of an April 26, 2011 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 for the Agency as a Plant Physiologist in Fort Collins, Colorado. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 26, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2) Effective October 1, 2010 (start of Fiscal Year 2011), the Agency will establish a new management unit (hereinafter “MU”) within the National Center for Genetic Resources Preservation (hereinafter “NCGRP”) consisting of the current Plant Germplasm Preservation Research CRIS 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. 2021003063 2 project (hereinafter “PGPRU MU”) and will appoint Complainant Research Leader of such management unit (hereinafter “PGPRU RL”). The other two CSIS projects within the Center, specifically, the Plant Genetic Resources Preservation Program and the National Animal Germplasm Program (hereinafter “PGRPP” and “NAGP”, respectively) will constitute the other MU within the NCGRP and will retain the name Plant and Animal Genetic Resources Preservation Unit (hereinafter “PAGRPU”) and be overseen by the PAGRPU Research Leader (hereinafter “PAGRPU RL”). The PAGRPU RL will also oversee all NCGRP facilities, with the exception of the items identified in Paragraph 4 herein.2 By letter to the Agency dated February 25, 2019, Complainant alleged breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency breached provision (2), which required that she be placed in a Research Leader (RL) position. Complainant alleged that on February 5, 2019, the Agency notified her that she was being removed from her position as RL and “demoted” to a Lead Scientist position. In its March 22, 2021 final decision, the Agency found no breach. The Agency sets forth that the settlement agreement did not address the length of service for the RL position and did not address reassignments. The Agency further provided “[t]he Agency indicates, due to a change in the financial stability of the Center, a reorganization of the [two] management units occurred [eight] years after the execution of the [settlement agreement] to ensure long-term financial viability of the Center’s research and other research related goals.” The Agency asserts that the reorganization did not change Complainant’s salary and that she remained a GS-15. The instant appeal followed. Complainant, through her attorney, asserts that the Agency’s decision finding no breach is improper. Complainant asserts that the parties intended for her to stay in the RL position until she retired. Complainant asserts that the Agency’s reorganization that eliminated her position was not needed. Complainant acknowledges that her salary did not change when she was reassigned. However, she asserts that she no longer “supervises Category 1 and 4 scientists, no longer prioritizes resources and no longer participates as a member of the core leadership of the Fort Collins location.” Finally, in a declaration under penalty of perjury, Complainant asserts that the Agency’s actions were retaliatory. In response, the Agency asserts that the Commission should affirm its final determination finding no breach of the settlement agreement. 2 The record reflects that the Agency provided other consideration as part of the settlement agreement, such as attorney’s fees and a lump sum payment. However, these provisions are not at issue herein. 2021003063 3 The Agency reiterates that where a settlement agreement offers an employee a change of position as one of its terms, there is no guarantee the employee will hold that position in perpetuity. In addition, the Agency reasserts that the Complainant maintained her same grade, GS-15, after the reorganization. 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 (2) of the settlement agreement. The record reflects, pursuant to provision (2) of the settlement agreement, the Agency issued a memorandum to employees on May 11, 2011 announcing that Complainant was being appointed to the position of Research Leader of the Plant Germplasm Preservation Research Unit at the National Center for Genetic Resources Preservation in Fort Collins, Colorado.3 The record also contains a declaration under penalty of perjury from the Agency’s Plains Area Director. Therein, he asserts that in 2019, the National Laboratory for Genetic Resources Preservation (NLGRP) underwent a reorganization due to various reasons, including sustaining the long-term financial stability of the animal and plant research curation activities within NLGRP. According to the Area Director, the 2019 reorganization consolidated two management units into one. Specifically, the Area Director stated that the Plant and Animal Genetic Resources Preservation Unit and the Plant Germplasm Preservation Research Unit combined to form one new unit known as Agricultural Genetic Resources Preservation Research Unit (AGRPRU). The AGRPRU contains three distinct research projects and Complainant was appointed Lead Scientist for one of the three research projects. 3 The record also contains a Notification of Personnel Action form reflecting that effective October 1, 2010, Complainant was realigned from a Plant Physiologist position to a Supervisory Plant Physiologist position, in accordance with the settlement agreement. We note that the title “Supervisory Plant Physiologist” appears to be the classification title for the functional/duty title of “Research Leader.” 2021003063 4 The Commission has 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 to include employment in that exact position ad infinitum. See Kaplan v. Dep’t of the Air Force, EEOC Appeal No. 0120130345 (April 26, 2013) (finding no breach after complainant served in the position for 21 months upon execution of a settlement agreement and the Agency subsequently underwent a reorganization); Holley v, Dep’t of Veteran Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). In addition, the Commission has held that in the absence of language in a settlement agreement regarding the length of time, a reasonable amount of time would be imputed. Complainant v. Dep’t of the Interior, EEOC Appeal No. 2019004088) (Sept. 17, 2019) (reassignment after nineteen months did not breach the agreement). In the instant matter, Complainant held the RL position for approximately eight years until 2019, when a reorganization took place. In addition, the record reflects that after the reorganization in 2019, Complainant maintained her GS-15 grade level and salary4. While Complainant may disagree with the Agency’s decision to undergo the reorganization, this is insufficient to establish that the Agency is in breach of the settlement agreement. To the extent Complainant is alleging that she was “demoted” due to discrimination and/or retaliation, 29 C.F.R. § 1614.504(c) provides that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. If Complainant wishes to pursue this matter, she should contact an EEO Counselor. We AFFIRM the Agency’s final determination finding no breach of the subject 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. 44 The record contains a Notification of Personnel Action Form for Complainant reflecting that effective March 3, 2019, Complainant was realigned from the position of “Supervisory Plant Physiologist” to the position of “Plant Physiologist.” The record reflects that Complainant maintained her GS-15 grade level. 2021003063 5 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. 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. 2021003063 6 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 2, 2021 Date