0120170315
03-10-2017
Beth G.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beth G.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120170315
Agency No. BOP20160392
DECISION
Complainant filed a timely appeal with this Commission from the Agency's September 22, 2016 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 Accountant (GL-09) at the Agency's Federal Correctional Institution in Bennettsville, South Carolina.
Believing that the Agency subjected her to unlawful discrimination (harassment and retaliation), Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process on February 19, 2016. Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter on June 23, 2016.
For the instant complaint, the term of the Agreement at issue, provision five of the second paragraph ("Paragraph 2.5"), states:
Management will ensure [Complainant] receives Time and Attendance ("T&A") training no later than March 31, 2017 for Fiscal Year 2017.
Complainant has continuously held various T&A duties since she began working for the Agency in 2009. In a declaration accompanying her appellate brief, Complainant explains that she took on T&A duties as "an extra responsibility in order to further [her] career." These additional duties resulted in a time off award in 2016, and higher performance ratings. Prior to entering the Agreement, Complainant was the primary timekeeper for the Facilities Department, backup timekeeper for other departments, and a T&A auditor for records entered by other timekeepers. Complainant presumed she would maintain the same duties after she entered into the Agreement.
On June 23, 2017, before the Alternative Dispute Resolution ("ADR") mediation session began, an Agency Human Resources Specialist ("HRS") notified Complainant via email that she would no longer be a timekeeper. Complainant interpreted the email to mean that this only applied to her duties as a primary timekeeper, not as a backup or T&A Auditor. She also believed that the inclusion of Paragraph 2.5 meant that the parties understood that she would maintain some T&A duties because it obligated the Agency to provide her with T&A training.
On July 7, 2016, Complainant's first day back at work since entering the Agreement, she was denied access the Agency's online T&A reporting system and no longer assigned any T&A duties. Complainant alleges that the Agency removed her T&A duties in order to retaliate against her for her EEO activity giving rise to this Agreement. She also alleges that the Agency breached the Agreement by negotiating in bad faith. According to the Agency, Complainant's current position does not require T&A system access.
By letter to the Agency dated July 22, 2016, Complainant alleged that the Agency was in breach of the Agreement, and requested that her underlying complaint be reinstated for further processing, pursuant to the Commission's regulations.
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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
However, there are instances when an otherwise valid agreement may be void, voidable, or reform able, depending on circumstances, for example due to coercion, misinterpretation, or mistake. See Nemirow v. Dep't of the Army, EEOC Appeal No. 01930062 (Dec. 8, 1992). The Commission has previously found that bad faith in negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Security Admin., EEOC Request No. 05950169 (June 12, 1997); Dupuich v. Dep't of the Army, EEOC Appeal No. 0120073901 (Nov. 2, 2007).
Applying the plain meaning rule, we find the Agency cannot be in breach at this time because according to the Agreement, the Agency has until March 31, 2017 to fulfill its obligation under Paragraph 2.5. The Agreement is silent on the issue of whether Complainant is assigned T&A duties, and we find no ambiguity in the Agreement to warrant an interpretation that Complainant should be assigned T&A duties.
On appeal, Complainant argues that the Agency breached the Agreement by engaging in bad faith during negotiations for Paragraph 2.5. Alternately, Complainant asks this Commission to void the Agreement, arguing that the Agency misrepresented (intentionally or unintentionally) to Complainant that she would maintain her duties as a backup T&A timekeeper and auditor when it included T&A training in Paragraph 2.5. Complainant alleges that it was highly unlikely that the Agency did not already know that she would be relieved of all T&A duties during negotiations because HRM (HRS's supervisor) was present for the mediation and negotiations. Complainant further asserts that had she been aware that she would not be able to use the T&A training for which she negotiated, she would not have entered the Agreement.
Upon review, we note that Complainant improperly references statements allegedly made in the course of mediation in both her appellate brief and declaration. Confidentiality is considered one of the "Core Principles" of Alternative Dispute Resolution ("ADR"). "Parties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." See EEOC Management Directive for 29 C.F.R. Part 1614, Ch. 3 � II.a.3 (Aug. 5. 2015) citing the Administrative Dispute Resolution Act of 1996 ("ADRA") codified as 5 U.S.C. �574; see also Nakesha D. v. Dep't of the Army, EEOC Appeal No. 0120161782 (Oct. 11, 2016). Since confidentiality is essential to the success of all ADR proceedings, we have not considered any statements allegedly made during mediation in our analysis.
Complainant alleges that the Agency negotiated in bad faith when the Human Resources Manager ("HRM") allowed her to agree to Paragraph 2.5, T&A training, knowing that Complainant's T&A duties were to be removed. Complainant compares her case to Complainant v. Nat'l Endowment for the Arts, EEOC Appeal No. 0120133264 (Feb. 4, 2014). There, we found that agency engaged in bad faith during settlement negotiations when, as part of the agreement, the complainant's manager promised to participate in anti-harassment training and provide him with the certificate of completion, knowing that the complainant's employment would be terminated within two weeks of entering that agreement. In National Endowment for the Arts, we determined bad faith because "complainant was persuaded to withdraw his pending EEO complaint in exchange for actions on the part of management that it seems likely the Manager knew would never come to pass." However, when the parties entered into the Agreement for the instant case, there was no reason for Management to believe that the T&A training (i.e. the benefit identified in Paragraph 2.5) would not come to pass.
We find a more apt comparison for Complainant can be found in Veney v. Social Security Administration, EEOC Appeal No. 0120121962 (Jul. 30, 2012). That complainant was reassigned to another area of the facility in accordance with a settlement agreement she entered into with the agency, a provision she requested in order to avoid a coworker. Yet, after she moved, that coworker "maintain[ed] a presence at her new location by walking down her aisle, "parading" in her section, and attempting to communicate with her." We found the Agency was not in breach because the settlement agreement only required the Agency to reassign the complainant; it was devoid of any reference to placing constraints on the coworker. Therefore, we concluded that if Complainant wanted such constraints imposed, she should have included such a provision as part of the settlement agreement. Citing Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (Mar. 4, 1987). Likewise, for the instant case, Complainant may have expected that she would maintain her T&A duties, as that was her alleged purpose in requesting the training, yet the Agreement is devoid of any reference to her T&A duties. Therefore, Complainant cannot establish breach as a result of the Agency's removal of her T&A duties.
We are not persuaded by Complainant's alternate argument that by including Paragraph 2.5, which obligates the Agency to provide her with T&A training, the Agency misrepresented to Complainant that she would maintain her T&A duties. Complainant asserts that the Agreement should be voided because but for this alleged misrepresentation, she would not have entered the Agreement. The record reflects that Complainant was aware prior to the negotiations that her T&A duties were not guaranteed, acknowledging in her declaration that these duties were "extra." Moreover, on the day of the negotiations, the Agency notified Complainant in an email flagged "urgent" that at least a portion of her T&A duties had been removed. Complainant repeatedly cites one statement in this email: "[i]f [Complainant] would like to keep [her] certification for auditing purposes, please let [Complainant's] supervisor know because [her] knowledge in that area is invaluable" to indicate that she was told she would be relieved of her duties as a primary timekeeper only, not backup or auditor. Yet, Complainant fails to reference the two emails that followed: Complainant's response minutes later, "I would like clarification to know if I am being relieved of my duties as Time and Attendance keyer/keeper," and HRS's immediate response "[yes] ma'am. That is my understanding." Hence we do not find the Agency misrepresented the T&A training promised in Paragraph 2.5 to also mean Complainant would maintain her T&A duties.
To the extent that Complainant interpreted Paragraph 2.5 as a mandate for the Agency to allow her to maintain her T&A duties, or that the benefit of the training cannot exist without also maintaining her T&A duties, such interpretation should have been reduced to writing as part of the settlement agreement, and in the absence of a writing cannot be enforced. See Carter v. Dep't of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing Jenkins-Nye, supra.
Under 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement must be processed as separate complaints rather than as a breach of a settlement agreement. See Baul v. Dep't of the Navy, EEOC Request No. 05940023 (Sept. 2, 1994); Bindal v. Dep't of Veterans Affairs, EEOC Request No. 05900225 (Aug. 9, 1990). We find that Complainant's retaliation claim alleges a subsequent act of discrimination. Therefore, if Complainant intends to raise a claim of retaliation she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105 to pursue the allegation as a new complaint.
CONCLUSION
Accordingly, the Agency's finding that it was not in breach of the Agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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.
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.
Carlton M. Hadden, Director
Office of Federal Operations
March 10, 2017
__________________
Date
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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