Beth G.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

2019003434 (E.E.O.C. Sep. 27, 2019)

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

Beth G.,1
Complainant,

v.

Linda McMahon,
Administrator,
Small Business Administration,
Agency.

Appeal No. 2019003434

Agency No. 01-18-017

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision by the Agency dated March 18, 2019, finding that it was in
compliance with the terms of a September 16, 2009 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 an Information Technology
Specialist.

On September 16, 2009, Complainant and the Agency entered into a settlement agreement to
resolve an EEO matter.2 The September 16, 2009 settlement agreement provided, in pertinent
part, that:

(7) The Agency shall accommodate Complainant with the following permanent
accommodation - a full time work at home agreement in the position
described in Exhibit A, which is attached hereto. The Agency’s obligation
to allow Complainant to work at home full time shall continue until one of

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 The record does not contain a copy of the underlying complaint.
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the following events occurs: (1) Complainant no longer meets the definition
of an individual with a “disability”, as disability is defined in 42 U.S.C. §
12102; or (2) With reasonable accommodation, Complainant becomes
medically unable (on a permanent basis) to perform the duties of her
position while working at home. None of the provisions of the agreement
shall be construed in any manner so as to deprive Complainant of any right
under existing law or regulation or alter or amend any such rights.
. . .

(9) If Complainant believes that the Agency has failed to fully comply with the
terms and conditions of this agreement, he shall notify the Agency’s
Assistant Administrator for Equal Employment Opportunity and Civil
Rights Compliance in writing an in accordance with the provision of Title
29, Code of Federal Regulations, Section 1614.504, of the alleged non-
compliance within thirty (30) calendar days of when he knew or should have
known of the alleged noncompliance, and may request that the terms of this
Agreement be specifically implemented or, alternatively that the EEOC
administrative process be reinstated from the point processing ceased.

By letter dated February 28, 2019, Complainant alleged that the Agency was in breach of provision
(7) of the settlement agreement by reassigning her to a new position with a new position description
(PD) on February 14, 2019.

In its final decision, the Agency found no breach. The Agency sets forth that Complainant alleges
breach of the agreement when it assigned her to a position description that is different from the
one referenced in provision (7) of the settlement agreement. The Agency found that Complainant
has been in a different position description since 2015. The Agency found that Complainant failed
to raise the matter of an alleged breach until February 2019, beyond the 30 days referenced in
provision (9) of the settlement agreement.

The instant appeal followed.

In response, the Agency requests that we affirm its final decision. The Agency asserts that in June
2012, the Agency provided Complainant a new position description in the OCIO Office of
Planning and Technology Assets Management. The Agency further states that in 2015, the Agency
provided Complainant a new position description placing her in the position of Information
Technology Specialist, OCIO Division of Enterprise Architecture and Policy Branch. The Agency
reiterates that Complainant waived any breach claim years prior by accepting reassignments dating
back to at least 2015, and has not met the 30-day deadline under provision (9) of the settlement
agreement.

The Agency also states that assuming arguendo that Complainant’s breach claim is timely raised,
Complainant has not worked in any position other than a GS-2210-14 Information Technology
Specialist.
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Specifically, the Agency states that “the Commission has held that an agency [is] not obligated to
keep a complainant’s position description perpetually the same pursuant to a settlement
agreement.”

In reply, Complainant asserts that the Agency did not breach the settlement agreement until 2019.3
Specifically, Complainant asserts that “[w]hile the Agency attempted to revise her position
description (PD) in 2015, she vehemently objected and was ultimately allowed to continue
working under her old PD. Similarly, the 2012 and 2017 personnel actions did not result in a
change of [her] duties or a change to her PD. However, the 2019 reassignment did alter her PD. . . .
Since [according to Complainant] neither the 2012 or 2017 personnel actions resulted in a change
to [Complainant’s] PD, there was no breach of the settlement agreement until [she] was reassigned
in February 2019.”4

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).

As an initial matter, we do not find that the Agency has met its burden of proving that
Complainant’s breach claim is untimely. While the Agency asserts that Complainant was placed
under different PDs in 2012 and in 2015 (and thus her 2019 breach claim is untimely), Complainant
contests this assertion. Specifically, Complainant asserts that while her position might have been
realigned subsequent to the settlement agreement, she still worked under the same PD referenced
in the settlement agreement. In addition, while Complainant acknowledges that the Agency
created a draft of a new PD in 2015, she asserts that she contested this PD and was never officially
placed or worked under the draft PD. We note that the record does not contain affidavits from
pertinent agency officials or other documentary evidence clearly indicating that Complainant, prior
to 2019, was officially placed under and was actually working under a different PD (including
different duties, responsibilities etc.) than the one referenced in the settlement agreement.

3 We exercise our discretion to consider Complainant’s reply brief.

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Based on the foregoing, we find that the Agency has not met its burden of establishing that
Complainant’s breach claim is untimely.

We now turn to the merits of Complainant’s breach claim. Based upon the record before us, we
are unable to ascertain whether the Agency is in breach of provision (7) of the settlement
agreement. Provision (7) describes placement in the referenced position as a “permanent
accommodation.” Exhibit A attached to the agreement is a copy of an SF-52 – Request for
Personnel Action form reflecting assignment of Complainant to an IT Specialist, GS-2210-14
position. The record also contains a PD attached to the 2009 settlement agreement for an
Information Technology Specialist, GS-2210-14 position in the Office of the Chief Information
Officer. Furthermore, the record contains a Notification of Personnel Action form reflecting that
Complainant was being reassigned to another IT Specialist, GS-2210-14 position on March 17,
2019. As set forth above, Complainant asserts that her position description (PD) did not change
until 2019, and thus the Agency did not breach the settlement agreement until 2019. However, it
is unclear, based on the record before us, how Complainant’s position description in 2019 changed.
Specifically, the record does not contain a copy of the PD associated with the 2019 reassignment.
In addition, Complainant does not expressly specify how her duties and responsibilities changed
with the 2019 reassignment. Based on the foregoing, we order the Agency to conduct a
supplemental investigation, as set forth in the Order below.

Moreover, to the extent, Complainant also believes that the new PD violates the Rehabilitation Act
or another EEO law (rather than solely a settlement breach claim), she may contact an EEO
Counselor if she wishes to pursue this matter through the EEO process.

Accordingly, we VACATE the Agency’s final decision finding no breach and we REMAND this
matter to the Agency for further processing in accordance with the ORDER below.

ORDER

Within sixty (60) calendar days from the date this decision is issued, the Agency is ORDERED to
take the following action:

1. The Agency shall conduct a supplemental inquiry into whether or not it has breached
provision (7) of the September 2009 settlement agreement. As part of the supplemental
inquiry, the Agency shall obtain documentary evidence with respect to Complainant’s
PD which corresponds to her 2019 reassignment. This includes, but is not limited to,
the following matters: a copy of Complainant’s PD associated with her 2019
reassignment; an affidavit from Complainant expressly detailing how the 2019 PD
differs from the PD associated with the 2009 settlement agreement (such as differences
in duties and responsibilities); and any other affidavits from Agency officials that have
relevant information pertaining to Complainant’s 2019 PD and how it differed from
her PD referenced in the 2009 settlement agreement.

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2. Thereafter, the Agency shall issue a new final decision regarding whether it is in
compliance with provision (7) of the September 2009 settlement agreement, with
appeal rights to the Commission.

A copy of the Agency’s supplemental inquiry, with related evidence, and the new final decision
shall be provided to the Commission as referenced below in the paragraph entitled
“Implementation of the Commission’s Decision.”

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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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. 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

September 27, 2019
Date