0120140987
06-27-2014
Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120140987
Agency No. ED2011OCR0061
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 2, 2013, 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 an Attorney at the Agency's facility in Denver, Colorado.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 3, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part:
IV (2)(b) That the Agency will issue a corrected SF-50 assigning the Complainant to the position and title of National Disability Expert, Office for Civil Rights, U.S. Department of Education, effective as of March 28, 2011;
IV (2)(k) That upon termination of Complainant's detail and her return to the OCR, the Agency's Headquarters' Office, Office for Civil Rights will request office space commensurate with a GS-15 attorney position within the Chavez Building. The Agency may but is not required to assign space within the Office for Civil Rights, Denver Regional Office; and
IV (3)(i) The Parties agree that permanent space within the Denver Regional Office for Civil Rights, at the Department of Education and within the Chavez Building in Denver is presently unavailable. The Parties agree that the Chavez Building is being rehabbed and that the Parties are not in control of the availability of further office space. The Headquarters Office, Office for Civil Rights will request office space commensurate with a GS-15 attorney position within the Chavez Building for occupation by Complainant at the end of Complainant's interagency detail. The Agency may, but is not required to assign space within the Office for Civil Rights Denver Regional Office.
By letter to the Agency dated October 16, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with the Agreement with respect to where Complainant's office would be. Complainant's also alleged that the Agency failed to issue a corrected SF-50 in compliance with provision IV (2)(b).
In its December 2, 2013 FAD, the Agency concluded that it had in fact breached provision IV (2)(b) by failing for two years since the signing of the agreement, to issue the corrected SF-50 assigning Complainant to the position and title of National Disability Expert. However, in her appeal statement Complainant indicated that the Agency has since cured its breach of provision IV(2)(b). Complainant further indicated that in light of the Agency's cure, her allegation of breach regarding the SF-50 is no longer the subject of her appeal. In that regard, this decision, will not address Complainant's breach allegation with respect to the SF-50.
The Agency's final decision further concluded that it fully complied with the settlement agreement with respect to the location of Complainant's office. Specifically, the Agency determined that pursuant to the agreement, provisions IV (2)(k) and IV (3)(i) require the Agency at the end of Complainant's detail, to request office space commensurate with a GS-15 attorney position in the Chavez Building for Complainant to occupy. The Agency further indicated that the terms "request" and "commensurate with a GS-15 attorney position," require further analysis. The Agency contends that in the context of spacing being unavailable in the Chavez Building, the term "request" implies that the Agency will request appropriate office space for Complainant in the Chavez Building and offer it to her if space is available, (emphasis added). The Agency further contends that if office space "commensurate with a GS-15 attorney position," is unavailable in the Chavez Building, the Agency is not obligated to offer Complainant any office space at all. In addition, the Agency indicates that the agreement does not define or offer a description of an office space, "commensurate with a GS-15 attorney position." In that regard, the Agency examined the office space assigned to other GS-15 attorney's in the Agency's Office of Civil Rights and determined that there was no appropriate office space available for Complainant within the Chavez Building. As such, the Agency contends it is not further obligated under the specific terms of the agreement. Finally, the Agency noted that although it was not obligated to do so, it assigned Complainant an office with a window at an alternate location, the Custom House.
On appeal, Complainant contends that there were several office spaces available for occupation within the Chavez Building. Complainant argues that the Agency elected not to renovate available space within the Chavez Building, refused to expend funds in order to build out available spaces within the Chavez Building and instead, elected to enter into a new lease in another building, and incur additional costs associated with on-site IT support, supplies, and office equipment. In addition, Complainant indicates that reporting to an office space in the Custom House as opposed to the Chavez Building is a hardship for her family because her son attends day-care at the onsite facility located in the Chavez Building. Moreover, Complainant contends that in the Custom House, she would be further isolated from her supervisors and co-workers to her detriment.
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).
In Klein v. Department of Housing and Urban Development, EEOC Request No. 05940033 (June 30, 1994), we stated that we would not resort to extrinsic evidence, outside the four corners of the agreement, to determine the meaning of a writing which appeared to be facially plain and unambiguous. However, in Wong v. United States Postal Service, EEOC Request No. 05931097 (April 29, 1994), we stated that "where the terms of the document are ambiguous or for equitable reasons, the Commission may go beyond the language of the agreement and look at the intent of the parties to the agreement" (citation omitted).
In the present case, the Commission finds that the Agency looked to extrinsic evidence to determine that there was no office space commensurate with a GS-15 attorney position within the Chavez Building to offer Complainant. Specifically, the Agency examined the office space of other GS-15 attorneys in the Office of Civil Rights and found that there was nothing similar available in the Chavez Building to accommodate Complainant's senior position. Moreover, the final decision indicated that the settlement agreement did not obligate the Agency to provide Complainant with space within the Chavez Building. Rather, the agreement provided that the Agency would request space and offer it to Complainant if such space was available. In that regard, the Agency fulfilled its obligations under the settlement. In addition, the Agency provided Complainant with an office space with a window in the Custom House.
While Complainant argues on appeal, that being located in the Custom House presents a hardship for her family and further isolates her from co-workers, the settlement agreement between the parties has no provision regarding Complainant's proximity to co-workers or to her son's daycare. To the extent that Complainant intended for the agreement to address such concerns, she should have negotiated that they be included in the agreement she signed on October 3, 2011.
CONCLUSION
Accordingly, based on a review of the record, herein, we affirm the Agency's determination that it complied with the settlement agreement between the parties.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 (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 (Z0610)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2014
__________________
Date
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0120140987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140987