[Redacted], Neta P., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 11, 2022

Appeal No. 2022001283 (E.E.O.C. Apr. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neta P.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022001283 Agency No. ATL-21-0298 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated December 9, 2021, finding that it was in compliance with the terms of a May 13, 2021 settlement agreement. 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 for the Agency in Raleigh, North Carolina, through the Agency’s regional office in Atlanta, Georgia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO counselor to initiate the EEO complaint process. On May 13, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. Therein, the Agency agreed to the following affirmative obligation: Within 15 days of the effective date of this Settlement Agreement, the Agency agrees to reassign Aggrieved to a GS-12 Step 4 Claims Technical Expert, Position Description No. 05E2400, within the Agency’s Durham, NC office (DO 328) located at [provided address in Durham, North Carolina]. Telework would be 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. 2022001283 2 determined based on the telework decision for that entire office. Relocation costs are not included in this Settlement Agreement. By letter to the Agency dated May 21, 2021, Complainant alleged breach, and requested that the Agency specifically implement the terms of the settlement agreement. In its December 9, 2021 determination decision, the Agency found it had fully complied with the May 13, 2021 settlement agreement. The instant appeal from Complainant followed. 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). While Complainant has not been clear about how she believed that settlement agreement, which only contained the single obligation concerning reassignment by the Agency, it appears she is arguing that she has continued to be “harassed” and, therefore, wants the EEO complaint underlying the settlement agreement to be reinstated. However, the record contains a copy of a notification of personnel action, SF-50, dated May 21, 2021, reflecting Complainant’s reassignment to the Agency’s Durham, North Carolina office as required in the subject settlement agreement. Complainant does not dispute this. Therefore, we conclude the Agency has met its one affirmative obligation under the agreement. Accordingly, the Commission AFFIRMS the Agency’s finding of no breach of the May 13, 2021 settlement agreement.2 To the extent that Complainant is alleging further acts of harassment after the settlement agreement was signed, we have held that claims of further discrimination should be processed as a new, separate complaint, rather than as a breach allegation. See Bindal v. Department of 2 Because of our disposition of this case, we find it unnecessary to address the Agency assertion that the breach claim was not timely filed. 2022001283 3 Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). Thus, Complainant should raise her claim of further harassment as a new, separate complaint by initiating EEO counseling from the 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. 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. 2022001283 4 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 (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 April 11, 2022 Date