[Redacted], Mercedez A., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2021001723 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mercedez A.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021001723 Agency No. 63-2018-00002 Hearing No. 531-2019-00348X DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency, dated January 8, 2021, 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 Administrative Assistant, GS-07, at the Agency’s Demographics Division in Suitland, Maryland. Believing that the Agency subjected her to unlawful discrimination, Complainant filed an EEO complaint. While the matter was pending before an EEOC Administrative Judge (AJ), on July 27, 2020, the parties executed a settlement agreement to resolve the case. The settlement provided, in relevant part: (2) In consideration of the Agency taking the actions described in paragraph (3) below, Complainant agrees to: 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. 2021001723 2 (2)(a) REASSIGNMENT. Provide Agency Counsel with her most recent resume within thirty (30) days of the effective date of this agreement, to assist in the Agency’s search for a lateral reassignment pursuant to (3)(a) below. (2)(b) WITHDRAWAL. Withdraw, with prejudice her complaint assigned EEOC No. 531-2019-00348X and Agency No. 63-2018-00002. The Complainant’s withdrawal of this case will be effective on the effective date of this Agreement. * * * (3) In consideration of Complainant taking the actions described in paragraph (2) above, the Agency agrees to: (3)(a) REASSIGNMENT. Reassign Complainant to another mutually agreeable position within the Agency at the same GS-level (GS-7) and career promotion potential (GS-8), outside of the chain of command of [Management officials MO1 and MO2], with no change in Complainant’s salary, and/or benefits, pursuant to Paragraph (2)(a) above, within seventy-five (75) days of Agency counsel’s receipt of Complainant’s resume or the effective date of this Agreement, whichever is later. The time period for reassignment may be extended by mutual agreement of the parties for an additional thirty (30) days. The Agency’s obligation under this agreement shall be considered fulfilled upon offering five (5) alternative lateral positions for reassignment, regardless of whether Complainant agrees to such assignment. Any positions offered for consideration by Complainant do not detract from the Agency’s obligation to offer five (5) positions for reassignment. * * * On October 21, 2020, Agency Counsel sent Complainant 6 positions to consider: 1) VIN# 21000055, HR Assistant -- GS-7, potential for promotion to GS-8 2) VIN# 21000092, HR Assistant -- GS-7, potential for promotion to GS-8 3) VIN# 20001104, Program Assistant -- GS-7, potential for promotion to GS-8 4) VIN# 19000857, Administrative Assistant -- GS-7, potential for promotion to GS-8 5) VIN# 20000996, Administrative Assistant -- GS-7, potential for promotion to GS-8 6) VIN# 20001213, Program Support Assistant -- GS-7, potential for promotion to GS-8 On November 2, 2020, Agency Counsel sent Complainant a follow-up email requesting to trigger the mutual 30-day extension on the reassignment term set for the in the Agreement. Complainant agreed to the extension three days later. On November 23, 2020, Agency Counsel emailed Complainant’s attorney to inquire if Complainant considered the positions. Complainant’s attorney confirmed that she had; however, Complainant had concerns regarding two of the positions. 2021001723 3 Specifically, Complainant noted that VIN# 21000092 was not a bargaining position and was worried that VIN# 20001104 was in the same office as MO1 and MO2. Complainant’s attorney inquired whether there were other positions the Agency “could offer in lieu of these?” Agency Counsel responded on November 25, 2020, explaining that VIN# 20001104 was not within MO1 or MO2’s chain of command and stating that the position would be held open until December 3, 2020. Additionally, Agency Counsel noted, “many of these positions have concluded their vacancy announcements and I’ve asked HR to keep the positions open, but the Agency needs to have an answer from [Complainant] by December 3rd as the positions do need to be filled.” As for Complainant’s inquiry of VIN# 21000092, Agency Counsel stated that the position was not a bargaining position. He added that the Agency would look for an alternative replacement for VIN# 21000092. In an email dated December 1, 2020, Agency Counsel informed Complainant’s attorney that the Agency unable to find a replacement for VIN# 21000092. However, he asserted that the Agency was willing to hold the position open for Complainant if she was interested in it, even though it was not in the bargaining unit. On December 2, 2020, Complainant’s attorney informed Agency Counsel that Complainant would accept the position listed in VIN# 20001213. However, the next day Agency Counsel replied and stated that the VIN# 20001213 position had been filled. Agency Counsel also relayed that five of the offered positions had been filled. On December 4, 2020 Complainant’s attorney sent the Agency a letter alleging that the Agency was in breach of the Agreement. Specifically, Complainant’s attorney asserted that provision (3)(a) was breached, reasoning that five of the offered positions were filled on, or prior to, October 21, 2020. Consequently, Complainant was effectively only offered one position, not six, as required by the agreement. As a remedy, Complainant requested that her complaint be reinstated. Internal agency emails from January 6, 2021, reflected the status of the positions offered on October 21, 2020 to be as follows: 1) VIN# 21000055, HR Assistant -- Vacant 2) VIN# 21000092, HR Assistant -- Vacant 3) VIN# 20001104, Program Assistant -- Filled on 11/17/20 4) VIN# 19000857, Administrative Assistant -- Vacant 5) VIN# 20000996, Administrative Assistant -- Filled on 10/23/2020 6) VIN# 20001213, Program Support Assistant -- Filled on 12/6/2020 The Agency’s EEO office clarified that all the positions were outside of the command of MO1 and MO2, and that if Complainant was reassigned to one of the positions her salary and benefits would remain unchanged. 2021001723 4 On January 8, 2021, the Agency’s EEO Office forwarded the following list of positions for Complainant’s consideration to Complainant’s attorney: 1) ID# 2854, Administrative Support Assistant, --Boulder CO -- ZS-04 2) ID# 904, Administrative Support Assistant, --Boulder CO -- ZS-04 3) ID# 2862, Secretary OA, --Boulder CO -- ZS-04 4) ID# 2845, Secretary OA, --Silver Spring, MD -- ZS-04 The Agency’s EEO Office maintained that the positions were outside of the command of MO1 and MO2, and that if Complainant was reassigned to one of the positions at the ZS-04 level, her salary and benefits would be equivalent, or better, to her current position.2 In its January 8, 2021 FAD, the Agency found that it was in compliance with the settlement agreement. The Agency determined that it complied with its obligations under the Agreement by offering Complainant five positions on October 21, 2020. The Agency indicated that Complainant took weeks to select a position, VIN# 20001213, which was filled by that time. Nevertheless, three other positions remained vacant. The Agency noted, significantly, that there was no timeframe in which the offers were to remain open. If Complainant wanted the positions to remain open for a certain period, reasoned the Agency, she should have ensured language to that effect was included in the agreement. Lastly, even if its actions resulted in a technical breach, the Agency maintained this was promptly cured when it offered Complainant four additional positions on January 8, 2021. Complainant filed the instant appeal. On appeal, Complainant, through her attorney, argues that the Agency breached the agreement in two ways: 1) in failing to offer five positions that met the requirements of the agreement; and 2) in failing to place Complainant in the position she selected. Complainant contends that two of the positions, for HR Assistant, were temporary and not part of the bargaining unit. Therefore, they did not provide Complainant with the “same benefits” of her current position, as required. A third position, VIN# 20000996 was filled only two days after it was offered to Complainant, so she was deprived of a reasonable amount of time to consider it. Complainant asserts that although the Agency was aware that she was considering Position VIN# 20001104, as evidenced by the parties’ emails in late November 2020, it failed to inform her the position had already been filled at that time. With respect to VIN# 20001213, the position accepted by Complainant on December 2, 2020, Complainant argues that, although the Agency maintains that it was also filled, the record reflects it was filled three days after Complainant expressed her desire to take the position. As for the Agency’s January 8, 2021 offers, Complainant argues they are untimely and do not meet the agreement requirements nor cure the breach. The positions in Colorado have a lower locality pay and, contends Complainant, the position in Silver Spring, Maryland is outside her commuting distance. 2 On appeal, Complainant rejects these positions, reasoning that they are either outside her commuting area or reflect a lower locality pay. 2021001723 5 In response, the Agency maintains that it is in compliance with the settlement agreement terms. It was under no obligation, argues the Agency, to offer Complainant positions in the bargaining unit, since “benefits” within the context of employment refers to retirement and health insurance, not “terms or conditions of employment that might encompass bargaining unit coverage.” 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, provision (3)(a) of the agreement requires the Agency to “reassign Complainant . . . within seventy-five days of . . . receipt of Complainant’s resume . . .” The provision further states that “The Agency’s obligation . . . shall be considered fulfilled upon offer of five (5) alternative lateral positions for reassignment. . . .” The record reflects that Complainant submitted her resume to the Agency on August 20, 2020.3 The parties do not dispute that on October 21, 2020, the Agency provided Complainant with a list of six positions. Based on the instant record, there appears to have been no communication between the parties for almost two weeks following Complainant’s receipt of the offers. On November 2, 2020, in anticipation of the approaching deadline, the Agency contacted Complainant, seeking to trigger the thirty-day extension. Complainant agreed. Yet, eighteen days later, Complainant had still not informed the Agency of her desire to accept any of the offers. Again, on November 23, 2020, the Agency contacted Complainant to inquire whether she was interested in any of the offered positions. It was not until December 2, 2020, that Complainant expressed her desire for position VIN# 20001213. Not unreasonably, by that time, the Agency responded that the position had been filled. 3 Consequently, the time limit for reassigning Complainant expired on November 3, 2020. 2021001723 6 Based on this timeline of events, we find that the Agency fulfilled its obligations under provision 3(a) by offering Complainant five positions. We agree with Complainant, that she was not given a reasonable amount of time to consider the offer for VIN# 20000996, that was filled on October 23, 2020, and as such, this position does not count toward the Agency’s obligation. However, we note that the agreement did not expressly provide for a time period for Complainant’s consideration of the offer. Rather, provision 3(a) set a 75-day deadline to complete the reassignment.4 In fact, with respect to timeliness, the record reflects that it is Complainant, rather than the Agency, that let days and week pass without taking the actions necessary to fulfill the requirement of (3)(a) (i.e. reassign Complainant). We agree with the Agency that if Complainant wanted the positions to remain open for a certain period, she should have ensured that language to that effect was included in the agreement. As for Complainant’s assertion that some of the positions offered by the Agency did not adhere to the settlement requirement “with no change in Complainant’s salary and/or benefits”, and therefore do not constitute compliance with the agreement, we are not persuaded. Specifically, Complainant argues that her current position is a permanent position with accompanying union benefits and VIN# 21000092, as acknowledged by the Agency, was a non-bargaining unit position. We find that the Agency substantially complied with its obligation to offer “alternative lateral positions.” Union inclusion was not a material feature of the Agreement. See Blount v. Department of Veterans Affairs, Appeal No. 01A62035 (July 14, 2016) (substantial compliance found when the complainant was transferred to a position outside of the bargaining unit because union inclusion was not a material feature of the agreement). The instant agreement specified that there should be “no change in Complainant’s salary, and/or benefits.” All of the positions that were offered on October 21, 2020 were at the same GS-level as Complainant’s current position (GS-7), so there would be “no change” to Complainant’s salary. In addition, the Agency’s EEO Office confirmed that Complainant’s benefits would remain the same if she was reassigned. Moreover, following receipt of Complainant’s breach allegation, the Agency offered Complainant an additional four positions. While Complainant was dissatisfied with the location of the positions, we find that this subsequent offer cured any breach suspected at that time. Given the foregoing, we find that Complainant has not met her burden in establishing that the Agency breached the July 27, 2020 settlement agreement. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. 4 Complainant erroneously argues that the 75-day time limit began on the date the agreement was executed and applied to the time within the Agency needed to offer the positions. 2021001723 7 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. 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). 2021001723 8 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 August 15, 2022 Date