U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yael S,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 2019002997
Agency No. DLAN120134
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision by the Agency dated January 18, 2019, finding that it was
in compliance with the terms of an August 7, 2012 settlement agreement. See 29 C.F.R.
§ 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
On August 7, 2012, Complainant and the Agency entered into a settlement agreement to resolve
a matter which had been pursued in the EEO complaint process. The August 7, 2012 settlement
agreement contained, in pertinent part, the following provisions:
Provision 1: Within three pay periods after signing this agreement, the Agency will
reassign Complainant to the position of Human Resources Specialist, GS-0201-13 in J-17
with a duty station of New Cumberland, PA. The position will have no more than 10%
travel annually. Complainant will work in an alternate location outside of the DHRS-N
Office on the DLA New Cumberland, PA Installation.
Provision 6: Complainant will be given priority consideration for positions for which she
is qualified at the GS-13 level within DHRS for three years after the execution of this
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.
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agreement. Complainant must notify [Agency Contact Person] of her interest in the
position. After being given priority consideration and being selected, no further priority
consideration will be offered.
During the relevant period, Complainant worked as a Human Resources Specialist, 0201, GS 13
at the Agency’s J-17 office located in New Cumberland, Pennsylvania. However, due to an
organization de-layering initiative, Complainant’s Human Resources Specialist position was
abolished, and Complainant was reassigned from this position to the position of Lead Human
Resources Specialist, GS-0201-13, at the Defense Logistics Agency (DLA), DLA Customers at
New Cumberland located in New Cumberland, Pennsylvania, effective December 9, 2018.
By email dated December 6, 2018, Complainant alleged breach of the August 7, 2012 settlement
agreement. Complainant states that when she declined an October 30, 2018 draft settlement
agreement related to another EEO complaint she had filed,2 the Agency subsequently reassigned
her to the same position (Lead Human Resources Specialist) that she declined to accept in the
October 2018 draft settlement agreement. Complainant also states that she was reassigned to the
Lead Human Resources Specialist position due a Management Directed Reassignment (“MDR”),
effective December 9, 2018. Complainant further alleges that her position was abolished even
though J-17 had recently hired a GS-13 position from outside of DLA and even though J-17 had
announced a temporary promotion GS-14 position.
In its January 18, 2019 final decision, the Agency found no breach of the August 7, 2012
settlement agreement. The Agency explained that the settlement agreement was expressly
limited to Complainant’s initial reassignment to the Human Resources Specialist position and did
not require the Agency to permanently keep Complainant in this position in the event of a future
realignment, reorganization, or delayering initiative. The Agency further explained that the
terms of the settlement agreement indicated that Complainant would be given priority
consideration for GS-13 positions for three years. The Agency reasoned that the agreement for
priority GS-13 consideration expired in August 2015 and the agreement did not provide priority
consideration for GS-14 positions. The Agency further stated that Complainant should file a
new complainant if she believes the Agency discriminated against with respect to the
reassignment and the J-17 positions Complainant claims were available.
The instant appeal followed. Complainant does not submit additional arguments or statements.
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.
2 The October 30, 2018 draft settlement agreement relates to another complaint – Agency Case
No. DLAN-18-0060.
20190029973
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).
Here, the record includes a copy of an October 30, 2018 email indicating that the Agency was
interested in reassigning Complainant to a Lead HR Specialist position as part of another
settlement agreement. A copy of a November 8, 2018 email indicates that the Agency informed
Complainant’s representative that the Agency “will abolish its J17 staffing in New Cumberland
location” and offered to include a clause in the pending settlement agreement that it would
“return [Complainant] back to J17 position in New Cumberland, if by May 30, 2020 her position
in J17 had not been abolished.” Complainant, through her representative, subsequently, denied
the Agency’s offer that same day.
The record also includes a copy of a November 10, 2018 letter from Human Resources indicating
that Complainant’s position with DLA Human Resources, Office of the Director Human Capitol
Business Integration was being abolished no later than December 8, 2018 because of the Major
Headquarters Activity reductions for fiscal year 2019. The letter further informed Complainant
that she would be reassigned to a Lead Human Sources Specialist position with no effect on her
current pay rate. A copy of Complainant’s SF-50 notification indicates that the reassignment was
effective December 9, 2018.
We note that the subject agreement does not provide Complainant with an indefinite guarantee
that she would remain working as a Human Resources Specialist. Instead, the subject agreement
provides that Complainant would have priority consideration for GS-13 positions for 3 years, or
until August 2015. Complainant acknowledges that she was reassigned to a new position (Lead
Human Resources Specialist), effective December 9, 2018, because the MDR abolished her
position. Additionally, the Agency disclosed to Complainant the possibility of J17 being
abolished before issuing the November 10, 2018 notification letter. When an employee bargains
for a specific position but fails to request terms as to length of service in the position, the agency
is not obligated to retain the employee in that position indefinitely. See e.g., Donelan v. U.S.
Postal Service, EEOC Appeal No. 01956930 (Mar. 4, 1997) (citing Parker v. Department of
Defense, EEOC Request No. 05910576 (Aug. 29, 1991)). In the instant case, the record
establishes that these provisions were accomplished. The record further supports that the details
and timing of the reorganization were not anticipated by the Agency at the time of the execution
of the subject agreement.
20190029974
To the extent that Complainant’s breach claims raise new incidents, we agree with the Agency
that Complainant should file a new complaint if she believes that the Agency discriminated
against her by issuing the reassignment and by not selecting Complainant for the J-17 positions
Complainant claims were available.
The Agency’s final decision finding no breach of the August 7, 2012 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. 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).
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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
July 2, 2019
Date
