0120090852
08-19-2009
Valarie D. Johnson, Complainant, v. Stuart J. Ishimaru, Acting Chairman, Equal Employment Opportunity Commission,1 Agency.
Valarie D. Johnson,
Complainant,
v.
Stuart J. Ishimaru,
Acting Chairman,
Equal Employment Opportunity Commission,1
Agency.
Appeal No. 0120090852
Agency No. 200500032
DECISION
On December 22, 2008, complainant filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from a final
agency decision (FAD) dated November 26, 2008, finding that it was in
compliance with the terms of the July 20, 2006 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.
ISSUES PRESENTED
Whether the agency breached the settlement agreement that the parties
entered into on July 20, 2006, when:
(1) Complainant was not reimbursed for the $625 fee for a mediation
course she took;
(2) Another agency employee was granted a hardship transfer from the
Dallas District Office to the Seattle Field Office, to the position of
mediator; and
(3) After a lengthy detail to the mediation unit, complainant was not made
a permanent mediator, and she alleged that her performance was criticized
by her supervisor without foundation, and that the detail otherwise set
her up to be unfairly judged in the future, when a mediator position
actually became available.2
BACKGROUND
Complainant works at the agency's Seattle Field Office (SFO),
formerly known as the Seattle District Office. Complainant, who
was an Investigator, GS-12, with the Seattle District Office filed a
complaint alleging that she was discriminated against based on her race
(African-American) and reprisal for EEO activity when in May 2005 she was
not selected for the position of Alternative Dispute Resolution Mediator,
GS-12, in the Seattle District Office, under vacancy announcement
SEDO-05-01.
The parties settled the complaint on July 20, 2006. The settlement
agreement provided, in pertinent part, that:
(1) The agency agrees to grant the complainant forty (40) hours of
paid leave for training purposes in the area of mediation, and
(2) The agency agrees to give complainant priority consideration
for the next available mediator position. Both parties understand that
priority consideration means that the selecting official for the future
position will review complainant's application without any comparison to
any other applicants' applications and determine if complainant should
be selected for the position. Complainant understands that priority
consideration is not a guarantee of selection.
Events followed that complainant alleged breached the settlement
agreement. On July 30, 2007, she wrote to the SFO Director asking to
be reimbursed for a mediation course fee of $625. The Director offered
to reimburse complainant $200 to help defray her training expenses,
but declined to give more, explaining there was no agreement to pay for
the mediation course.
On August 15, 2007, a supervisory investigator in the agency's Dallas
District Office made a written hardship request to the Director of the
Office of Field Programs (OFP) to transfer to the SFO. She explained
that she was the primary caregiver for her mother who had a debilitating
stroke in January, that she made two lengthy trips to Seattle because of
her mother's health, and each time she returned to Dallas her mother's
health declined. The request suggested that she work as a mediator,
and it was approved by the agency.
By email to the agency's Director of the Office of Equal Opportunity
(OEO) on September 21, 2007, complainant first alleged that the agency
breached the settlement agreement. Specifically, she alleged that her
request to be reimbursed for the mediation training fee was not resolved,
and that the agency filled a mediator job through a hardship transfer
without first giving her priority consideration. Complainant contended
this showed there had to be an opening.
Following an investigation, the OEO investigator verbally told complainant
there was no breach of the settlement agreement, and read complainant an
outline of her appeal rights. (See October 16, 2007 email from the OEO
investigator assigned to the breach claim to the OEO Director.) By email
to the OEO investigator on October 31, 2007, complainant advised that she
had not received the agency's written determination on her breach claim,
and asked if it was mailed. Complainant followed up on November 5,
2007, and the OEO investigator replied that she forwarded complainant's
request for information to the OEO Director.
Around this time, the SFO Director offered complainant a detail to
the mediation unit, which she accepted on December 7, 2007. It was
initially termed as a 90-day detail and commenced after complainant
returned from her January 2008 vacation. After the 90 days elapsed,
complainant continued working within the mediation unit.
By email to the OEO Director on September 12, 2008, complainant made a
second notice of breach. She alleged that the SFO Director previously
told her he would submit paperwork to make her a permanent mediator,
but then she heard nothing. She continued that the alternative dispute
resolution (ADR) coordinator, her supervisor in the mediation unit,
was criticizing her performance as a mediator without foundation.
Complainant requested that her detail be made permanent. By email to
the OEO Director on October 22, 2008, complainant made a third notice
of breach. She wrote that she was informed that day that her mediator
detail would terminate on December 1, 2008. Complainant further alleged
that detailing her as a mediator circumvented the settlement agreement
because it set her up to be judged by comparative performance, which
would give the agency an excuse not to select her by unfairly judging
her performance, rather than giving her priority consideration.
In a final decision issued on November 26, 2008, the agency found no
breach of the agreement had occurred. The agency rejected complainant's
first allegation on the ground that there was no term in the settlement
agreement promising to pay the costs of mediation training, only an
agreement to grant complainant 40 hours of paid leave for training
purposes.
The agency rejected the complainant's second allegation on the ground
that there had not been an "available mediator position" for which
complainant could have received priority consideration. Specifically,
in an affidavit dated October 2, 2007, the Director of the Office of
Field Programs (OFP) explained that jobs within the agency are typically
filled internally through a merit promotion announcement or externally
with an Office of Personnel Management (OPM) all sources announcement.
He stated that in July 2007 he was informed that, for budget reasons,
he was not authorized to fill any positions through either process.
He added that, at the time, offices did not have a set number of job slots
and, as a result, he had to wait for authorization to fill positions.
The SFO Director, in his October 9, 2007, affidavit, affirmed that he had
not yet considered complainant for a mediator position because although
he had asked EEOC Headquarters for authority to fill mediator vacancies,
headquarters had not granted his request. He further indicated that on
July 9, 2007, the ADR Coordinator had advised complainant that the SFO
had sought authority to fill mediator vacancies, but headquarters had
not authorized SFO to fill these vacancies.
The FAD found that granting the Dallas employee's hardship transfer did
not violate complainant's agreed right to priority consideration because
a hardship transfer presents a special circumstance that does not indicate
there is an open, funded position available. The Director of OFP affirmed
that requests for hardship transfers come to his office where a liaison
speaks to the affected offices to see whether the workload needs of the
agency would be served and to learn of any objections. He also affirmed
that although a hardship transfer was approved at this time, it did not
have an impact on filling a position in the SFO because no position
was announced, either externally or internally. The SFO Director
also affirmed that the hardship transfer did not impact complainant
because without a vacancy announcement, there was no opportunity to
give complainant priority consideration. The FAD found there was no
evidence the SFO initiated the request for the hardship transfer in
order to circumvent its settlement agreement with complainant.
The FAD also rejected complainant's third allegation of breach of the
settlement agreement-her assertion that she was not made a permanent
mediator following her ten-month detail in the mediation unit, and
that detailing her as a mediator circumvented the settlement agreement
because it set her up to be judged by comparative performance, which
would give the agency an excuse not to select her by unfairly judging
her performance, rather than giving her priority consideration.
The FAD found that, with respect to complainant's fear that the ADR
supervisor's criticism during her detail would adversely affect her
chances of a permanent position as a mediator, complainant was alleging
a breach based on an event that had not yet occurred. A copy of the
FAD was sent to the complainant.
By email to the successor Director of OEO on December 8, 2008,
complainant alleged that she was retaliated against for the EEO activity
of attempting to enforce her EEO settlement agreement when her performance
was criticized, she received an improper performance appraisal, and her
detail as a mediator was terminated on December 1, 2008.
On appeal, complainant argues that granting the hardship transfer to
the Dallas employee violated complainant's agreed right to priority
consideration. She argues that within months of the SFO asking
headquarters for authorization to fill mediator vacancies, a vacancy
was filled. She writes that she has been told that a hardship transfer
will not be approved unless there is a vacancy, slot, or sufficient
workload to justify approval. She argues that it is her understanding
that hardship transfers must be to the same position.
In support of her argument, complainant cites the case of Bishop
v. Department of Transportation, EEOC Request No. 05910148 (April 10,
1991). In Bishop, the parties signed a settlement agreement giving the
appellant "priority consideration for promotion to the next appropriate
GS/GM-14 in the Regional headquarters." The respondent agency conceded
that during the relevant period, the position of Assistant Personnel
Officer, GM-14 was filled by reassignment/transfer. In finding a breach,
the Commission rejected the respondent's argument that the settlement
agreement only applied to positions filled by competitive procedures and
held that the agency filled the position in question via reassignment in
a specific effort to circumvent its settlement agreement. In the instant
matter, complainant argues that the hardship transfer to the SFO violated
the agency's merit promotion plan under which employees are allegedly
entitled to "advance consideration" only if they were involuntarily
demoted or not given proper consideration due to a procedural violation
or error in a previous competitive placement action. Complainant also
controverts the statements of agency management, claiming a mediator
position was filled in the San Francisco District Office (SFDO) in fiscal
year 2007, and during this time the hardship transfer requests by two SFO
employees were not granted because there was no vacancy at the receiving
office and/or the office directors did not agree on the transfer.
In opposition to complainant's appeal, the agency supports the findings
in the FAD. The agency adds that the settlement agreement expressly
defines priority consideration to mean "the selecting official for
the future position will review complainant's application without
any comparison to any other applicants' applications and determine if
complainant should be selected for the position." It argues that the
plain meaning of this language is that the parties were only agreeing
to give complainant priority consideration in which the selection of
a mediator would occur through the typical hiring process. It argues
that there is no selecting official in a hardship transfer request.
The agency argues that, to the extent complainant contends that merit
promotion procedures were violated, the EEO administrative process is
not the proper forum for addressing such procedural irregularities.
The agency argues that Bishop does not apply because the agency did
not attempt to circumvent the settlement agreement or normal hiring
procedures by granting the hardship transfer. It counters with a citation
to Stringfield v. Department of the Army, EEOC Appeal No. 05920592
(October 29, 1992), where the Commission found that a transfer of an
employee, without the appellant receiving priority consideration, did
not breach a priority consideration clause of a settlement agreement
because there was no evidence that the transfer was illegitimate, i.e.,
that the agency was required to advertise the position.
The agency also contends that complainant untimely filed her appeal
on her breach claim. It argues that complainant was notified by the
OEO investigator that the agency did not believe a breach occurred and
read an outline of complainant's appeal rights on October 16, 2007,
but she allowed the 35 calendar day time period to file an appeal with
the Commission to elapse. 29 C.F.R. � 1614.504(b). The agency also
argues that complainant resolved her breach claim when she accepted the
detail and stopped pursuing her breach claim again for nearly a year,
and the termination of her detail does not revive her breach claim.
In reply to the agency's opposition, complainant argues that she timely
filed her appeal. She argues that she did not view her acceptance of
the detail as a resolution of her breach claim. She also argues that
the settlement agreement provided that she would be provided priority
consideration for the next mediator vacancy, not the next competitively
filled vacancy.
ANALYSIS AND FINDINGS
As an initial matter, we find that complainant timely filed her appeal.
EEOC Regulation 29 C.F.R. � 1614.504(b) provides:
The agency shall resolve the matter [notice of breach] and respond to
the complainant, in writing. If the agency has not responded to the
complainant, in writing, or if the complainant is not satisfied with the
agency's attempt to resolve the matter, the complainant may appeal to
the Commission for a determination as to whether the agency has complied
with the terms of the settlement agreement....The complainant may file
such an appeal 35 days after he or she has served the agency with the
allegations of non-compliance, but must file an appeal within 30 days
of his or her receipt of an agency's determination....
Complainant filed her appeal within 30 days after her receipt of the
agency's determination, the FAD. This was timely under Commission
regulations. 29 C.F.R. � 1614.402(a) & .504(b). The agency misreads
29 C.F.R. � 1614.504(b). That section provides that the complainant
may file such an appeal 35 days after she has served the agency with the
allegations of non-compliance, but must file an appeal within 30 days of
his or her receipt of an agency's determination. The agency misreads the
35 days to be a time limit rather than a waiting prerequisite, absent a
FAD, before filing an appeal. See April v. Department of Agriculture,
EEOC Appeal No. 01963775 (June 5, 1997); Johnson v. United States Postal
Service, EEOC Appeal No. 01980523 (July 16, 1999). Finally, we are
not persuaded that complainant's acceptance of the detail resolved her
breach claim. The record does not support a finding that she communicated
this to OEO.
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 Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
On complainant's first issue, we agree with the FAD that there is no
language in the settlement agreement obligating the agency to pay the
fees for the mediation training complainant took. On complainant's third
issue, the settlement agreement is silent both as to how the agency should
view complainant's performance while detailed to the mediation unit, and
whether or not to make the detail permanent. Accordingly, we find these
matters did not breach the settlement agreement. Complainant's contention
that the detail undermined her future right to priority consideration
under the settlement agreement is without merit. She is still entitled
to priority consideration, as defined by the settlement agreement.
Other than an implicit requirement of good faith, the settlement agreement
is silent on how the agency should view complainant's qualifications
when she receives her priority consideration.
On complainant's second issue, we find that the agency did not violate
complainant's agreed right to priority consideration when it granted
a Dallas employee a hardship transfer to the position of mediator in
the SFO. We find by a preponderance of the evidence that the hardship
transfer did not occur under circumstances where priority consideration
applied under the terms of the settlement agreement. As already noted,
the record contains statements from management that, for budgetary
reasons, the SFO did not have authority to fill any positions, either
internally through a merit promotion announcement or externally through
an OPM all sources announcement. Thus, there is no indication that
management initiated any selection process to fill a mediator position
in SFO. Moreover, as argued by the agency, the settlement agreement
expressly defined priority consideration as applying when there was
a selecting official and applicants, which was not the case with the
hardship transfer.
We are unpersuaded by complainant's reliance on Bishop. In Bishop, unlike
in the instant case, there was no description of an exceptional situation.
Here, first, the SFO had no authority to fill the positions for budgetary
reasons. Second, a hardship request was made by an employee and granted
by the agency. There is no evidence that the agency solicited the
employee to make a hardship request to get additional staff to the SFO.
If the evidence showed the hardship transfer was granted in bad faith
to circumvent the settlement agreement, or that the agency was using
alternate methods to fill mediator positions in the SFO to get around
complainant's priority consideration right, we would likely reach a
different result. However, such is not the case here.
Complainant also argues, in essence, that hardship transfers violate
the agency's merit promotion procedures. We agree with the FAD that
the EEO administrative process is not the appropriate forum in which to
bring such a claim.
In addition, for the first time on appeal, complainant asserts that a
mediator position was filled in the SFDO in fiscal year 2007. In the
context in which she makes this assertion, we presume that she is
attempting to rebut the agency's assertion that there was a nationwide
hiring freeze in place during this period. Even assuming her allegation
about the filling of a position in San Francisco is true, it does not
rebut the affidavits of the SFO and OFP Directors that they did not have
authority to fill positions in Seattle, and that the hardship transfer
did not circumvent this lack of authority.3 Accordingly, the record
does not establish that a breach of the settlement agreement concerning
priority consideration occurred.
Finally, we conclude that complainant's December 8, 2008, email to the
successor Director of OEO alleging reprisal discrimination for pursuing
her breach claim should be treated as a request for EEO counseling,
to the extent this has not already been done. On remand, the agency
shall comply with the Order below.
CONCLUSION
After a careful review of the evidence, including a review of the parties'
arguments on appeal, the Commission affirms the FAD finding that the
agency did not breach the settlement agreement.
ORDER
To the extent it has not already done so, the agency shall treat
complainant's December 8, 2008, email to the Director of OEO as a request
for EEO counseling, and counsel her in accordance with 29 C.F.R. �
1614.105(b)(1) et seq. The agency shall acknowledge to complainant that
it has received his request for counseling within thirty (30) calendar
days of the date this decision becomes final. A copy of the agency's
letter of acknowledgment to complainant must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
August 19, 2009
__________________
Date
1 In the present matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority.
The Commission's adjudicatory function housed in an office that is
separate and independent from those offices charged with in-house
processing and resolution of discrimination complaints. For purposes of
this decision, the term "Commission" or "EEOC" is used when referring to
the adjudicatory authority and the term "agency" is issued when referring
to the respondent party in this action. The Acting Chairman has recused
himself from participation in this decision.
2 Complainant made her allegations of breach through a series of emails
to the Office of Equal Opportunity. Allegations one and two were made
in an email on September 21, 2007. Allegation three was made in emails
on September 12, 2008, and October 22, 2008. Additional allegations
were made in an email to the Director of OEO on December 8, 2008.
These latter claims are not considered part of this appeal, as further
discussed in this decision.
3 We note that the settlement agreement is not worded as carefully as it
should be, in that the agreement does not specify whether complainant's
right to priority consideration applies to mediator positions announced
nationwide or just in the SFO. Nonetheless, the record makes clear that
both parties are concerned only with a position in the SFO. To the
extent complainant is contending that she was interested in receiving
priority consideration for the mediator position that was allegedly
filled in the SFDO, we note she in no way claimed in her allegations
of breach to OEO that the filling of a mediator position in the SFDO
violated the settlement agreement or constituted retaliation.
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