Carly O,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 4, 2020

2020000119 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carly O,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020000119 Agency No. HS-CBP-27113-2016 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 5, 2019, 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 compliance action, Complainant worked as a General Attorney, GS-0905-14, at the Agency’s Academy Legal Staff, US Border Patrol Academic facility in Artesia, New Mexico. On April 13, 2018, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that: (1a) Complainant’s signature on this Agreement constitutes her withdrawal of the above-referenced complaint with prejudice. . . . 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. 2020000119 2 (1e) Complainant enters into this Agreement with the Agency knowingly, voluntarily, and with full knowledge of its terms, and absent any coercion or duress. (1f) Complainant fully understands all of the terms and conditions of this Agreement and has been given a reasonable amount of time to consider this Agreement and to thoroughly discuss all aspects of this Agreement with her representative, if any. Complainant understands that she may consult an attorney prior to signing this Agreement and Complainant understands that she is advised to consult with an attorney prior to executing this Agreement. (2) In exchange for the promises of Complainant, the Agency, subject to the conditions and limits set forth herein, agrees to: a. Laterally reassign Complainant from the Office of Deputy Assistant Chief Counsel (Training) at the Federal Law Enforcement Training Center (FLETC) located in Artesia, New Mexico to the Office of Assistant Chief Counsel (Training) at the FLETC located in Glynco, Georgia….This lateral reassignment will not adversely impact Complainant’s career progression within the Agency. Complainant will report to the Glynco, Georgia office no later than April 30, 2018. . . . (3c) This Agreement contains the full and complete agreement between the parties. No promises or representations other than those stated herein have been made by either party. By letter to the Agency dated July 18, 2019, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant stated that the Agency breached the language from Paragraph 2(a) of the Agreement that stated “This lateral reassignment will not adversely impact Complainant’s career progression within the Agency.” Complainant argued that the CBP had not provided her with “professional development” opportunities to help advance her career. Complainant filed directly with the Commission, thirty days after she submitted her breach claim to the Agency and after receiving the Customs and Border Protection’s (CBP)’s response to the breach allegation. Thereafter, the Agency issued its decision on September 5, 2019. The Agency concluded that Complainant did not prove that the Agency breached the settlement agreement. The Agency reasoned that, on April 29, 2018, the Agency reassigned Complainant from the Office of the Deputy Assistant Chief Counsel (Training) located in Artesia, New Mexico to the Office of Assistant Chief Counsel (Training) at FLETC located in Glynco, Georgia. At the time of the signing of the Agreement, Complainant was a General Attorney, GS-905-14, Step 1. The Agency states that her career progression has not been adversely affected, as evidenced by her increase in her salary and Time-Off Awards. 2020000119 3 The Agency noted that there was no requirement under the terms of the Settlement Agreement that Complainant be provided with “professional development” opportunities to advance her career. Nevertheless, the Agency concluded that she had received more varied instructional opportunities and assignments, after the Agreement was reached. 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 Agreement required that the Agency laterally reassign Complainant to a specific identified position no later than April 30, 2018. It is undisputed that the Agency met that obligation, as set forth in paragraph 2. That was the only provision at issue in this appeal. There is no evidence that Complainant’s career progression had been adversely affected by the lateral reassignment. For these reasons, we find that Complainant has not shown that the Agency breached the decision. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020000119 4 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, 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 (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. 2020000119 5 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 4, 2020 Date