Shawna H.,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

2019004088 (E.E.O.C. Sep. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shawna H.,1
Complainant,

v.

David Bernhardt,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 2019004088

Agency No. DOI-NPS-16-0422

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated April 24, 2019, 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 a Park Manager
Superintendent, GS-025-14, at the Agency’s Canaveral National Seashore in Titusville, Florida.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On May 18, 2017, Complainant
and the Agency entered into a settlement agreement2 to resolve the matter. The settlement
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.

2 There was also a September 14, 2016 settlement agreement between the Agency and
Complainant. The subsequent May 18, 2017 settlement agreement was reached as a result of a
settlement breach of the first settlement agreement. The May 18, 2017 settlement agreement
superseded the September 14, 2016 settlement agreement.
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15) Complainant’s detail to the position of Special Assistant to the Regional Director,
Southeast Region, shall be terminated effective May 27, 2017, and Complainant shall be
returned to her position of record as Superintendent, Canaveral National Seashore,
Titusville, Florida effective May 28, 2017.

By letter to the Agency dated December 18, 2018, Complainant alleged that the Agency was in
breach of the settlement agreement, and requested that the Agency implement its terms.
Specifically, Complainant alleged that the Agency failed to keep Complainant in her position as
Superintendent of the Canaveral National Seashore (Canaveral position), as specified in the May
18, 2017 settlement agreement, when she received a memorandum of directed reassignment
dated December 12, 2018, effective January 7, 2019.

In its April 24, 2019 FAD, the Agency concluded that it complied with the disputed term, and the
Complainant was returned to the Canaveral position, her permanent position of record, effective
May 28, 2017. The Agency further concluded that there was no language in the settlement
agreement that can be interpreted as an agreement on the part of the Agency that Complainant
would remain in the Canaveral position throughout her career with the Agency. Complainant’s
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant states that the May 18, 2017 settlement agreement required her return to
the Canaveral position. Complainant argues that the Agency acted in bad faith by first returning
her to her Canaveral position and later directing her reassignment. Complainant states that the
history between her and the Agency demonstrates a continuing pattern of harassment and
retaliation against her. Complainant states that after entering into the May 18, 2017 settlement
agreement, and her subsequent return to the Canaveral position, she abandoned her claims
against the Agency. Complainant argues that the objective of the voluntary resolution of EEO
complaints is undermined when a party fails to comply with a specific obligation set forth in the
settlement agreement. Complainant states that the Commission has held that contract rules apply
when a settlement agreement is reached between an employee and the Agency.

Complainant states that her involuntary reassignment from her Canaveral position was central to
the first and second settlement agreements with the Agency. Complainant recounts what led to
her entering into a settlement agreement with the Agency on September 14, 2016, as well as the
breach of that settlement agreement that led to the subsequent May 18, 2017 settlement
agreement. Complainant argues that absent a clause in a settlement agreement that establishes its
duration, that the agreement continues indefinitely and may only be rescinded based on acts or
conduct attributable to the employee. Conversely, Complainant also states that where a
settlement agreement is silent about the length of time an agency must place an employee in a
position, the Commission will apply a reasonableness standard. Complainant argues that when a
settlement agreement is silent on the length of time that the question before the Commission is
whether the agency exhibited a good faith compliance with the terms of the agreement.
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Complainant argues that the Agency’s directed reassignment per its notification on December
12, 2018, lacked justification beyond the allegation that Complainant’s skill set and experience
were needed in San Juan, Puerto Rico. Complainant argues that if her expertise was needed for
the smooth transition of leadership, then a detail, and not a permanent reassignment, would have
been appropriate. Complainant argues that the Agency continues to use her expertise as its
reason for directed reassignments, which she states led to the settlement agreement in question.
Complainant states that the Agency’s normal procedure is to staff such positions competitively,
and that employees who are not Senior Executive Service are not given management-directed
reassignments. Complainant states that these facts further demonstrate that the Agency acted in
bad faith.

The Agency submitted a brief in opposition to Complainant’s appeal in which it argued that the
Commission should affirm its determination that the settlement agreement was not breached.

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. Department of Defense, 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.
Department 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. United States Postal
Service, 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 Engineering Servs. Co., 730 F.2d 377 (5th Cir. 1984).

In the instant case, the May 18, 2017 settlement agreement clearly states, in Paragraph 11, that it
is the complete understanding between Complainant and the Agency. The settlement
agreement’s Paragraph 12 states that the parties agree that the settlement agreement constitutes
the final and complete statement of the terms contained in it and agreed to by the parties.
Paragraph 15 of the May 18, 2017 settlement agreement states that the Complainant’s detail shall
be terminated effective May 27, 2017, and she shall be returned to her position of record
effective May 28, 2017. There is no dispute that the Agency placed Complainant back in her
position of record. The settlement agreement appears to be plain and unambiguous on its face,
and therefore, the meaning and intent is determined based on what is within the four corners of
the settlement agreement without extrinsic evidence of any nature. Therefore, we examine the
settlement agreement and the actions taken by the Agency and Complainant, with respect to that
settlement agreement.
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The provision in Paragraph 15 required that the Agency return Complainant to her Canaveral
position effective May 28, 2017; however, there was no language in the settlement agreement
stating that the Agency was required to keep Complainant in that position for the duration of her
career.

The Agency and Complainant entered into the settlement agreement, and neither party stated that
Complainant’s return to her Canaveral position would be permanent. Both parties agreed that
Complainant would be returned to her Canaveral position, and the Agency returned Complainant
to her Canaveral position, in compliance with the settlement agreement. Neither party stipulated
as to what the length of time of Complainant’s return to the Canaveral position would be. The
Agency returned Complainant to her Canaveral position and, 19 months later, it reassigned
Complainant. Absent language in the settlement agreement regarding the length of time
Complainant would be in the Canaveral position, a reasonable length of time would be imputed.
See Complainant v. United States Postal Service, EEOC Appeal No. 0120133193 (January 29,
2014) (absent terms as to length of service which required agency to reassign employee to
position, settlement agreement not violated when agency approximately one year after
reassignment, abolished position and assigned employee to different, more difficult position).
The Agency reassigned Complainant 19 months after it complied with the terms of the settlement
agreement and returned her to her Canaveral position. We find that Complainant was returned to
her Canaveral position for a reasonable length of time before her directed reassignment on
January 7, 2019. Therefore, we conclude that the Agency did not breach the settlement
agreement.

CONCLUSION

The Agency’s decision, finding it was in compliance with the terms of the May 18, 2017
settlement agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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 17, 2019
Date