Janita H.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Jun 25, 2020

2020002170 (E.E.O.C. Jun. 25, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janita H.,1 Complainant, v. Linda McMahon, Administrator, Small Business Administration, Agency. Appeal No. 2020002170 Agency No. 01-18-017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated January 8, 2020, finding that it was in compliance with the terms of a September 16, 2009 settlement agreement. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an Information Technology Specialist, GS-2210- 14, for the Agency’s Office of the Chief Information Officer (OCIO), located in Washington D.C. Believing that she was subjected to discrimination based on disability and in reprisal for prior protected EEO activity, Complainant filed a formal EEO complaint on March 3, 2008. The parties resolved the matter, on September 16, 2009, by executing a settlement agreement. The settlement agreement provided, in pertinent part: (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 the following events occurs: (1) Complainant no longer meets the definition 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. 2020002170 2 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, she 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 to the Agency dated February 28, 2019, Complainant alleged breach. Specifically, Complainant alleged that agreement was violated when the Agency reassigned her to a new position with a different position description (PD) on February 14, 2019. On March 18, 2019 the Agency issued a decision finding that Complainant’s breach allegation was untimely raised. The Agency determined that Complainant “has not operated under the position description in Exhibit A since at least 2015.” In support of its determination, the Agency provided a copy of the September 2015 PD sent to Complainant, as well as her October 5, 2015 response. The Agency reasoned that Complainant’s allegation was well beyond the thirty-day time limitation. Complainant appealed the decision to the Commission. In requesting that we affirm its decision, the Agency argued that as far back as June 2012, it provided Complainant with a new position description for the OCIO Office of Planning and Technology Assets Management. Then, in 2015, the Agency gave her another position description for the OICIO Division of Enterprise Architecture and Policy Branch. The Agency determined that by accepting these reassignments and not timely alleging breach, Complainant waived her right to claim the agreement was breached. Even assuming arguendo that Complainant timely alleged breach, the Agency asserted that Complainant has always worked in the IT Specialist, GS- 2210-14. Complainant countered by asserting that it was not until 2019, that her position description was changed, and the agreement breached. Complainant argued that she opposed the 2012 and 2015 realignments but that those actions did not result in a change to her duties or position descriptions. 2020002170 3 In the prior decision, as an initial matter, the Commission found that the Agency did not support its assertion that Complainant’s allegation was untimely. See Complainant v. Small Business Administration, EEOC Appeal No. 2019003434 (Sept. 27, 2019). There was no evidence showing that, prior to 2019, Complainant was “officially placed under or working under a different PD.” See id. Turning to the merits of the breach allegation, the Commission found that the record was unclear on how Complainant’s PD changed in 2019. See id. The record did not include the 2019 PD, nor did Complainant specifically describe how her duties and responsibilities were altered. See id. Consequently, the Agency’s determination that it was in compliance with the agreement was vacated and the matter was remanded for a supplemental investigation. See id. The Agency was ordered to obtain evidence regarding the PD for the 2019 reassignment and determine how it differs from the PD referenced in the 2009 agreement. See id. On January 8, 2020, in compliance with the Commission’s order, the Agency issued a new decision following its supplemental investigation. The Agency again focused on the timeliness of Complainant’s breach claim. According to the Agency, Complainant had not worked under the Exhibit A position description referenced in the settlement since 2015. Further, it noted that Complainant admitted to performing enterprise architecture duties at that time, until she requested a transfer in 2018. While acknowledging that it failed to formally issue an SF-50 for the reassignment, the Agency concluded that Complainant had not been performing the 2009 PD duties for years (2015-2018). Complainant filed the instant appeal. It is her belief that the Commission’s prior decision concluded that her allegation was timely, and the case was remanded for investigation and a new decision on the merits. Instead, Complainant argues, the Agency “disregarded those instructions” and again found the allegation of breach to be untimely. Complainant contends that because the Agency did not request reconsideration of the Commission’s earlier decision, it is prohibited from re-arguing the timeliness issue2. Complainant argues that, instead, the Agency was limited to determining whether the 2019 PD was materially different from the 2009 PD. Complainant argues further that when it did not do so, the Agency failed to dispute Complainant’s allegation that the contract was violated with the issuance of the 2019 PD and the Commission should find breach. 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). 2 Moreover, Complainant argues that the Agency’s March 2019 decision was based upon the 2015 draft position description, not the 2012 or 2017 realignments referenced in the January 2020 decision, further restricting its ability to rely upon these changes as a basis for untimeliness. 2020002170 4 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). Regarding the timeliness of the breach allegation, we first must correct Complainant’s misunderstanding that the previous decision expressly determined her allegation to be timely. The Commission did not do so. Rather, the Commission found that the Agency did not support its decision finding the allegation was untimely. See EEOC Appeal No. 2019003434 (Sept. 27, 2019). However, Complainant accurately observed that the Agency failed to abide by the Commission’s orders regarding the subject of the supplemental investigation and subsequent agency decision. As noted above, the Agency was explicitly ordered to conduct a supplemental investigation into whether or not it breached provision (7), by gathering documentary evidence to include the following: a copy of the 2019 PD associated with Complainant’s reassignment, an affidavit from Complainant detailing the differences between the 2009 PD and 2019 PD, and affidavits from management officials with information regarding any distinctions between the two PDs. See id. Thereafter, the Agency was required to “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.” See id. Instead, the Agency’s January 8, 2020 decision states that Complainant has not worked under the agreed 2009 PD since 2015 and references the time frame for alleging breach set out in provision (9). Rather than expressly state that it again finds the allegation of breach is untimely, the Agency instead simply concludes that provision (7) has not been violated. Additionally, it notes that there is no indication of bad faith. Nowhere in the decision does the Agency describe the 2009 PD and 2019 PD or compare the job skills and duties set forth in each. In response to the instant appeal, the Agency presents conflicting arguments. On the one hand, the Agency argues the agreement was not violated because the supplemental investigation found that Complainant has performed duties under three different position descriptions since the 2009 agreement (2012, 2015 and 2019). This argument does not support the contention that no breach occurred, but rather that breaches transpired years ago and so Complainant is now foreclosed from seeking resolution. Yet the Agency fails to plainly reference timeliness, and instead conflates timeliness with a determination on the merits of the breach allegation. On the other hand, the Agency contends that “Complainant has always remained under the position description of GS-2210-12 IT Specialist”. The Agency states that in 2012 and 2015 Complainant worked the same job, but was moved to different offices. The Agency in essence argues that there was no violation of the agreement in 2012 and 2015. 2020002170 5 This undercuts the Agency’s timeliness argument, because if there was no breach there was no cause for Complainant to allege a violation of the settlement at those earlier times. As noted above, the Agency was ordered to compare the settlement PD with the 2019 PD, not 2012 or 2015. It did not do so in its January 8, 2020 decision, but does so for the first time in response to Complainant’s appeal. According to the Agency, while Complainant refers to her 2009 PD as a “Project Manager” position, she is not an “IT Project Manager” and has always maintained the position of “IT Specialist”. Similarly, the 2019 position is not one of a “Cybersecurity Specialist,” and the reference to cybersecurity in 2019 PD is not dispositive, but simply reflects updates to laws and policies. The Agency explains that the IT Specialist position, is broadly defined by necessity “due to the ever-evolving needs of the federal information technology workforce.” The Agency asserts that the position includes some project management responsibilities, which are maintained in the 2019 PD. The Agency argues that Any differences between the 2009 and 2019 PDs are superficial. Further, it contends that “Complainant confuses specificity with material change.” The 2019 PD includes more detailed references to the Federal Information Security Management Act of 2002 and includes references to cloud-based applications that were not part of the IT infrastructure in 2009. The Commission finds that the Agency has substantially complied with the September 16, 2009 settlement agreement. It was not until ten years later, in 2019, that Complainant alleged breach. The Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 29, 1991); Gomez v. Dep't of the Treasury, EEOC Request No. 05930921 (Feb. 10, 1994). For example, we have determined that an agency is not obligated to maintain special schedules forever. Bax v. United States Postal Serv., EEOC Appeal No. 01A31921 (Jan. 15, 2004) (finding no breach where a supervisor changed the scheduling system due to a decrease in work volume, and as a result, changed the complainant's schedule, which had been established as part of a settlement agreement over six years earlier.) We have also found that a managerial decision to change existing standards in a way that conflicts with a pre-existing settlement agreement is not necessarily a breach once a reasonable amount of time after the execution of a settlement agreement has passed. Lasso v. United States Postal Serv., EEOC Appeal No. 0120111023 (May 10, 2011) (finding no breach of a settlement provision requiring the agency to place complainant's mail case closest to the door, when, two and a half years after entering the agreement, the postmaster moved the mail case away from the door as part of an office reorganization). Therefore, the Agency’s determination that it was in compliance with the agreement was proper. CONCLUSION The Agency’s decision finding no breach of the subject settlement agreement is AFFIRMED. 2020002170 6 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 (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. 2020002170 7 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 June 25, 2020 Date