Karlene G.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Nov 15, 2019

2019004763 (E.E.O.C. Nov. 15, 2019)

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

Karlene G.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 2019004763

Agency No. 04-54-00116

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency final decision, dated May 14, 2019, finding that it was in
compliance with the terms of a May 18, 2004 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

In 2004, Complainant sought to transfer from her position as a Meteorologist, GS-1340-13, at
Radio Operations Center in Norman, Oklahoma, to that of an Information Technology Officer,
GS-2210-13, for the Weather Forecast Office in Green Bay, Wisconsin. The move was
motivated by Complainant’s desire to care for her ailing parents. According to Complainant,
while she first attempted to obtain the move through a hardship transfer, she was told that
entering an EEO settlement agreement was the better method as such agreements take precedent
over other administrative processes.

On May 18, 2004, Complainant and the Agency executed an agreement to settle Agency Case
Nos. 02-54-00280 and 04-54-00116. The May 18, 2004 settlement, in relevant part, required the
Agency to take the following actions:

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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(3) (a) Reassign Complainant from her position as a Meteorologist, GS-1340-
13 at the Radar Operations Center, Norman, Oklahoma to a position as
Information Technology Officer, GS-2210-13, at the Green Bay,
Wisconsin, Weather Forecast Office.

(b) Pay PCS costs allowable under Federal regulation for Complainant in
connection with her relocation.

The parties do not dispute that in July 2004, Complainant began working in Green Bay.
Complainant held this position for approximately thirteen years.

On August 31, 2017, Complainant was issued a “Notice of Directed Reassignment”2. The
Agency directed her to take an IT Specialist position in Silver Spring, Maryland, starting
November 16, 2017. Complainant accepted the reassignment and reported to the Silver Spring
facility.

On November 2, 2017, Complainant filed a new EEO complaint (Case No. 54-2017-00218)
alleging discrimination and a hostile work environment based on sex and reprisal. Complainant
amended the complaint numerous times. In addition to abusive comments, exclusion from
assignments, interference with job duties, and the denial of awards, Complainant alleged that:

(6) She was given a directed reassignment; and

(7) Management officials continued to pursue her directed reassignment, despite
being aware that her mother has severe medical issues, and despite begging
them to reconsider or find an acceptable alternative, such as telework.
Additionally, her current supervisor and another manager denied her requests or
did not even respond to some of her communications.

In September 2018, during the investigation of the new complaint, Complainant contacted the
Agency’s Office of Civil Rights inquiring how her breach claim would be addressed. The Office
of Civil Rights explained to Complainant that the allegation, that the directed reassignment
violated the settlement agreement, and would be “rolled into the current case” (i.e. Case No. 54-
2017-00218). At the completion of the investigation, in October 2018, Complainant requested a
hearing.

According to the Agency, on May 8, 2019, while the case was at hearing, Complainant contacted
the Agency stating she wished to pursue the claim of breach with respect to being reassigned.
Days later, on May 14, 2019, the Agency issued a final decision finding no breach.

2 The August Notice replaced an earlier, July 19, 2017 memorandum requiring the reassignment
begin on September 8, 2017.
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In its decision, the Agency reasoned that it was in compliance with the agreement, because
Complainant occupied the Green Bay position for over a decade and the settlement language did
not specify an amount of time. Further, the Agency noted that to the extent Complainant alleged
that the reassignment was the denial of a reasonable accommodation, the matter remained under
consideration at the hearing or Case No. 54-2017-00218.

Complainant filed the instant appeal.

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 the instant case, the parties entered a settlement agreement reassigning Complainant from her
position in Norman, Oklahoma to a position in Green Bay, Wisconsin. The agreement, however,
did not include any language regarding the duration of the reassignment. In compliance with the
settlement, the Agency reassigned Complainant to Green Bay and she began working in the
position in July 2004. The parties do not dispute that Complainant held the position for more
than a decade. It was not until 2017, that she was reassigned to Silver Spring, Maryland. The
Commission has held in the absence of language in a settlement agreement regarding the length
of time, a reasonable amount of time would be imputed. See Complainant v. United States
Postal Service, EEOC Appeal No. 0120133193 (Jan. 29, 2014) (settlement lacking terms
regarding length of service not violated when approximately a year later Agency reassigned
employee); Complainant v. Dep’t of Interior, EEOC Appeal No. 2019004088 (Sept. 17, 2019)
(reassignment after nineteen months did not breach agreement). Further, it would be improper to
view employment in the precise position ad infinitum as reasonable. See Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac v. Department of
Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991). Therefore, we find that
the Agency has complied with the terms of the May 18, 2004 settlement agreement.

In so finding, however, we do not deny that Complainant has raised a justiciable claim of
discrimination.
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As stated by the Agency, in response to the instant appeal, “[t]o the extent [Complainant] alleges
that the directed reassignment was retaliatory and/or that the Agency delayed or denied her [a]
reasonable accommodation, those claims are currently pending in Case No. 54-2017-00218. . . .”
The alleged actions do not constitute a violation of the 2004 settlement agreement.

CONCLUSION

Accordingly, the Agency’s decision was proper and is hereby AFFIRMED.

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).

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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)
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

November 15, 2019
Date