[Redacted], Brittany S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022005025 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brittany S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2022005025 Agency No. EU-FY22-002 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated September 21, 2022, finding that it was in compliance with the terms of a January 5, 2022 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 May 2021, Complainant began working as a Human Resources Specialist, GS-12, for the Agency’s Labor & Employee Relations office in Sembach, Germany. Complainant stated that she had spoken with her then-supervisor about promotion to a GS-13 position, and she and was told that she was doing a “wonderful job”, the promotion was “automatic” and should be implemented at her eligibility date without delay. On September 28, 2021, her then-supervisor confirmed that Complainant’s promotion would be processed despite the supervisor’s imminent departure. On September 29, 2021, Complainant’s new interim supervisor confirmed that he understood what actions needed to be taken and the promotion would be completed promptly. 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. 2022005025 2 Approximately one week later, on October 6, 2021, Complainant notified her interim supervisor of her pregnancy and the need for situational telework. Two days later, Complainant’s second- level supervisor notified her that Complainant would not be promoted to GS-13 because additional information was needed. Moreover, the second-level supervisor denied the telework request, advising Complainant to simply submit a leave request if she could not report to the office. Thereafter, Complainant submitted a request for a reasonable accommodation. When she did not receive a response, Complainant contacted an EEO Counselor to initiate the EEO complaint process. Specifically, Complainant believed the Agency was discriminating against her based on sex and disability2 regarding a promotion and a denied accommodation. On January 5, 2022, Complainant and the Agency entered into a settlement agreement to resolve the matter. The January 5, 2022 settlement agreement provided, in pertinent part, that: II. AGENCY’S COMMITMENT A. Upon the Agency’s receipt of this signed Agreement the Agency will process a promotion Standard Form (SF) 52, Request for Personnel Action, promoting [Complainant] to the grade of GS-13, with an effective date of September 26, 2021. B. That the Agency will approve [Complainant’s] reasonable accommodation (RA) request submitted via email on October 6, 2021, and allow [Complainant] to telework as needed, up to three (3) days per week. C. That the Agency will allow [Complainant], up until her pregnancy ends, to work a flexible work schedule to start the duty day, as needed, between the hours of 0600hrs and 0800 hrs. In an August 23, 2022 email, Complainant alleged that the Agency breached the subject settlement agreement, and requested that the Agency specifically implement its terms. Complainant explained that she was denied situational telework on August 3 and 4, 2022, when working at the office in extreme heat exacerbated her medical conditions. Complainant used sick leave to go home and, on August 5, 2022, called in sick because of the resulting “flare up”. When she tried to submit another reasonable accommodation request days later, for situational telework, the Disability Program Manager (DPM) told Complainant that she should have been allowed to telework under the terms of the settlement agreement. According to Complainant, DPM said she would speak to Complainant’s manager (Manager-G). However, Complainant stated that DPM stopped taking her calls and in the weeks that followed she was not permitted to telework. Complainant asserted that it was not until August 31, 2022, that she received an email from DPM instructing her to submit requests to Manager-G in order to telework. 2 The Agency provided “Pre-complaint Intake Form” set forth multiple boxes for the basis of disability - mental, physical, and pregnancy. Complainant identified “disability (mental - depression/anxiety)” and “disability (pregnancy)”. 2022005025 3 The next time a need for telework arose, on September 21, 2022, Complainant claimed she was “questioned why I requested it” before being granted two days of telework for that week. Moreover, Manager-G “reminded” her that each request would be assessed on a case-by-case basis. Complainant believed that Manager-G’s actions violated the agreement which provided her with telework “‘as needed’ for my medical condition, and not “at the discretion of my supervisor.” She alleged that the Agency breached the agreement for weeks, between August 10 and 31, 2022, when she was not given any information on her request to telework. Complainant asserted that even in the absence of any reasonable accommodation request, under the terms of the subject agreement, she was entitled to up to three days of telework per week. In its September 21, 2022 decision, the Agency found that it was in “substantial compliance” with the agreement. The Agency specifically found that “they allowed Complainant to telework, as requested, for the duration of [her] pregnancy.” The Agency’s analysis focused on whether the ad-hoc telework provision was on-going or limited to the duration of Complainant’s pregnancy. Citing the Complainant’s informal complaint and her October 25, 2021 reasonable accommodation request, as well as the fact that Complainant’s request for telework “subsided” at the time her pregnancy ended and did not recur until August 2022, “for a different purpose,” the Agency concluded that “the most reasonable conclusion” was that the provision was limited in time to Complainant’s pregnancy. Complainant filed the instant appeal. On appeal,3 Complainant contends that she was “bullied” by upper management to enter the agreement when management officials failed to provide her a reasonable accommodation. Moreover, Complainant describes “[t]he constant stress of not knowing whether my request for telework will be approved when I am having a flare-up is extreme as I cannot predict how [Manager-G] will respond day to day . . .” Reference was made to the language of provision B: That the Agency will approve [Complainant’s] reasonable accommodation (RA) request submitted via email on October 6, 2021, and allow [Complainant] to telework as needed, up to three (3) days per week. Complainant believes the wording provides her with the approval of her October 6, 2021 request and up to three days a week of telework as needed. In her view, the granting of telework is not dependent on the reasonable accommodation request. Complainant argues that settlement agreement does not state: “the Agency will approve Complainant’s reasonable accommodation request by allowing telework . . . .” Complainant asserts that her need for reasonable accommodation did not end with pregnancy, as she has a lifelong condition. She expressly stated that “My reasonable accommodation was always meant to be flexible and ever changing as my medical condition changed within my pregnancy and afterwards.” 3 The Agency did not submit a brief or contention in response to the appeal. 2022005025 4 ANALYSIS AND FINDINGS 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). Provision B explicitly references Complainant’s October 6, 2021 email requesting a reasonable accommodation. In the email, Complainant informed her new supervisor: “I am currently ten weeks pregnant and suffering from all-day sort of morning sickness.” She explained that the previous supervisor “had been letting me telework when my morning sickness was especially bad and on days when I had a doctor’s appointment” and asked if the new supervisor could support situational telework “during this time.” The email does not mention any other conditions or impairments that required an accommodation. Therefore, we agree with the Agency that the October 6, 2021 request and, in turn, provision B, relates to the time of Complainant’s pregnancy. The denial of telework from August 3, 2022 through August 31, 2022, does not constitute a breach of the settlement agreement. However, the Agency is reminded that under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). While we find that, under the terms of the settlement agreement, the Agency was not required to provide telework to Complainant following the end of her pregnancy4, its obligations under the Rehabilitation Act still existed. Following her pregnancy, Complainant made the Agency aware of a continued need for telework as a reasonable accommodation. A review of Complainant’s October 25, 2021 accommodation request, which includes information from her physician, reflects that her pregnancy was not the only condition at issue. 4 The instant record is unclear when Complainant’s pregnancy ended. In its final decision, the Agency indicates the end of March 2022. 2022005025 5 Complainant plainly sought telework as an accommodation “to allow me to continuing performing job duties when flare ups prevent me from being able to walk/drive to the physical workplace.” In the attached letter from her physician, the Agency was notified that Complainant has interstitial cystitis, “a chronic condition.” On the medical portion of the accommodation request form itself, Complainant’s medical provider explains that telework would allow Complainant to “lie down when pain is severe” and have unrestricted access to a bathroom. In response to the question regarding “estimate of date of full or partial recover”, Complainant’s physician stated: “Referring to specialist for treatment options with hope for improvement post- pregnancy.” Consequently, we find that the denial of telework during August 2022, for a condition other than pregnancy, is a new claim of discrimination. Moreover, we find that Complainant timely raised this claim with the Agency.5 While treated by the Agency as a breach allegation, the Commission now determines it is more appropriately handled as a new complaint to be remanded for an investigation.6 CONCLUSION We find that the Agency’s decision finding no breach was proper and is hereby AFFIRMED. The matter of the denial of a reasonable accommodation is REMANDED to the Agency as set forth in this decision and the ORDER below. ORDER The Agency is ordered to process as a new EEO complaint the remanded denial of reasonable accommodation claim (accommodation requested on October 25, 2021) in accordance with 29 C.F.R. § 1614.108 et seq. Within thirty (30) calendar days of the date this decision was issued, the Agency shall docket the remanded matter as a new complaint and immediately conduct an investigation. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. 5 In light of the circumstances of this case, the Commission expressly waives the time limit for contacting an EEO Counselor. 6 The final decision stated that Complainant filed a subsequent complaint regarding her continued need for telework as a reasonable accommodation, which is currently pending with the Agency. To the extent practical and efficient, the Agency may consider consolidating the instant remanded case with that complaint. 2022005025 6 As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2022005025 7 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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. 2022005025 8 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 March 2, 2023 Date