Xochitl B.,1 Complainant,v.Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120171568 (E.E.O.C. Dec. 14, 2018)

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

Xochitl B.,1
Complainant,

v.

Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 0120171568

Agency No. HUD-00083-2015

DECISION

On March 24, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 24, 2017 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.

BACKGROUND

During the period at issue, Complainant worked as a Management Analyst, GS-12, at the
Agency’s Office of Administration in Washington, D.C.

On September 22, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against her in reprisal for prior EEO activity when:

on June 10, 2015, she learned that a particular management official had been
detailed to her office as a Director. The complainant indicated that she informed
management that putting this individual in her chain of command was a breach of
her settlement agreement with the Agency.

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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The Agency accepted the complaint and conducted an investigation.

In summary, the evidence developed during the investigation shows that on June 1, 2015,
Complainant was informed that a named management official (“RMO1”) was being detailed to
act as the director of her office due to the retirement of her previous office director. As such,
RMO1 would become Complainant’s second-level supervisor. Complainant informed upper-
level management that this would violate the terms of a settlement agreement she had with the
Agency concerning a prior EEO complaint, identified as Agency No. HUD-00014-2012. RMO1
was identified in that prior EEO complaint as one of the management officials responsible for the
alleged discrimination. However, despite Complainant’s protests concerning RMO1’s detail,
management took no action to stop it.

Complainant claimed that when she settled her prior EEO complaint in July 2012, it was agreed
that she would be removed from RMO1’s management and placed in her current position.

The July 13, 2012 settlement agreement of Agency No. HUD-00014-2012 specifically provided
the following:

1. The Department agrees to immediately detail Complainant to the position of
Management Analyst, GS-0343-12, Office of Facilities Management, Mail
and Distribution Branch, effective July 15, 2012.
2. The Department agrees to laterally reassign Complainant to the position of
Management Analyst, GS-0343-12, Office of Facilities Management, Mail
and Distribution Branch.
3. The Department agrees to provide Complainant with training commensurate
with her new position as Management Analyst, GS-0343-12, Office of
Facilities Management, Mail and Distribution Branch.
4. The Department agrees to change Complainant’s performance rating for
FY2010 and FY2011 from Unsatisfactory to Fully Successful. The Agency
further agrees that Complainant shall be entitled to any within grade increases
that she would have received consistent with having received a Fully
Successful performance evaluation, including a within grade increase for
FY2012.
5. The Department agrees to provide Complainant with a 90 day delayed
performance evaluation period for FY2012. Complainant’s performance
evaluation for FY2012 will be based solely on the assessment of
Complainant’s work after her reassignment to the position of Management
Analyst and without input from Complainant’s previous supervisor.
6. The Department agrees to expunge any adverse personnel documents,
including any performance improvement plans from FY2010 to the present,
from Complainant’s Official Personnel File and any informal personnel files
maintained by management.
7. The Department agrees to restore to Complainant 120 hours of annual leave
and 60 hours of sick leave.
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8. The Department agrees to pay a lump sum of forty-five thousand dollars
($45,000.00), without withholding, set-off, or other deduction, to the
Complainant and her counsel. The payment of the foregoing sum shall be
made by electronic direct deposit to the Client Trust Account of
[Complainant’s attorney’s law firm], in accordance of this settlement
agreement. The parties acknowledge that Complainant is responsible for the
payment of taxes on the amount paid to the Complainant under this settlement
agreement, and the Agency will issue a Form 1099 to Complainant for tax
purposes.

The Chief Administrative Officer, who made the decision to detail RMO1 as director to
Complainant’s office, stated that at the time she made the decision she was unaware of
Complainant’s prior EEO complaint or the settlement agreement. The Chief Administrative
Officer stated that after learning of Complainant’s concerns, she asked the Agency’s Labor
Relations office and the Agency’s legal office to verify Complainant’s assertions. However, she
was told that there was no specific prohibition in the settlement agreement concerning
Complainant working under RMO1. Complainant responds that “it was implied” at the time she
entered into the settlement agreement, which was why the agreement provided for her transfer to
her current position.

After the investigation of the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge. In accordance with Complainant’s request, the Agency issued a final
decision on February 24, 2017, pursuant to 29 C.F.R. § 1614.110(b), concluding no unlawful
retaliation was proven.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

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Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.).
Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC
Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal
by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the
protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and
(4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by
evidence that the adverse treatment followed the protected activity within such a period of time
and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC
Appeal No. 01A35231 (Jan. 25, 2005).

The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in
protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see also
EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, at
II.B. (Aug. 25, 2016) (Enforcement Guidance on Retaliation) (“Retaliation expansively reaches
any action that is ‘materially adverse,’ meaning any action that might well deter a reasonable
person from engaging in protected activity.”). A retaliation claim involves three elements: (1)
protected activity, (2) materially adverse action taken by the employer, and (3) causal connection
between the protected activity and the materially adverse action. Enforcement Guidance on
Retaliation at II.A.

Here, there is no evidence that the Chief Administrative Officer, the official who decided to
detail RMO1 to the disputed position, was aware of Complainant’s prior EEO complaint or the
related settlement agreement at the time she made her decision to detail RMO1 to the position in
question. While Complainant disputes this on appeal, she has provided no evidence to support
her bare assertions to the contrary. Moreover, when Complainant raised her concerns, the
evidence indicates that the Chief Administrative Officer investigated the terms of the settlement
agreement, and was advised by labor relations and Agency legal advisors that there was no
specific prohibition in the 2012 settlement agreement against RMO1 being in Complainant’s
chain of command. Under these circumstances, we find no evidence to establish that
Complainant’s prior EEO activity played a role in the decision at issue. Moreover, we note that
Complainant has failed to present evidence that she has been subjected to adverse treatment since
RMO1’s detail has been effective.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that she has been subjected to unlawful retaliation.

Settlement Breach

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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 regarding 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).

Complainant claimed that the Agency breached the July 13, 2012 settlement agreement when it
placed RMO1 in her chain of command again. However, the settlement agreement merely states
that the Agency would promote and laterally reassign Complainant to a GS-13 Management
Analyst position, provide her with training commensurate with her new position, provide her
with a 90-day delayed performance evaluation for FY2012, restore her 120 hours of annual
leave and 60 hours of sick leave, expunge any adverse personnel documents, including any
performance improvement plans from FY2010 to present, from her Official Personnel Records,
and pay Complainant a lump sum payment of $45,000. The settlement agreement does not
address who may or may not be in Complainant’s chain of command. We therefore determine
that the Agency did not breach the instant settlement agreement. If Complainant had wanted to
never work again under RMO1, she should have expressly included such a provision in the
settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No.
01851903 (March 4, 1987).

CONCLUSION

Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of
record does not establish that discrimination occurred and no breach of the July 13, 2012
settlement agreement.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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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).

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)

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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

December 14, 2018
Date