0120150105
02-19-2015
Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120150105
Agency No. 2010-0004-R05
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated August 29, 2014, finding that it was in compliance with the terms of a November 25, 2009 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On November 25, 2009, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The November 25, 2009 settlement agreement provided, in pertinent part, that:
2. The Agency agrees to approve and support a two-year Intergovernmental Personnel Agreement ("IPA") for the Complainant. The IPA will be effective within 15 days of the date that the necessary paperwork has been executed (Appendix I - "Assignment Agreement") and all approvals have been obtained. The terms of this Agreement are subject to the requirements of 5 U.S.C. 3371 - 3376, 5 CFR 334.101 et seq. and EPA IPA Policy and Procedures Manual 3141. The Complainant will be treated as every other EPA employee that been detailed on an IPA assignment in Region 5.1
3. The Agency agrees to fully fund the IPA for two consecutive years as more fully set forth in the executed Assignment Agreement (see part 9 - Fiscal Obligations). This agreement may be renewed for up to one year at the discretion of EPA.
6. The Agency agrees to continue to provide the Complainant with a functional workstation which includes a phone, computer, chair, etc. and continued computer communication tools, such as email and security data token, AAA Token access and the complainant's ID card and credentials will remain activated with the current access and egress it currently has.
8. The Agency agrees to maintain a GS-14 level position of record and return to job rights, within Region 5.
By letter to the Agency dated January 22, 2014, Complainant alleged breach of provisions 2 - 3, 6 and 8. The Agency framed Complainant's breach claims as follows:
a. Your Intergovernmental Agency Assignment Agreement (IPA) was not extended for 2014 as promised by management;
b. You were not returned to her position of record, Associate/Supervisory Human Resources Officer, upon returning from an IPA on January 2, 2014;
c. You were placed on "unclassified" duties without "official" work, which have not been put in writing as of January 21, 2014;
d. You were assigned to report to a GS-14 Supervisory Team Lead;
e. You were made eligible for bargaining unit status; and
f. You were assigned a small cubicle, away from a window.
In its August 29, 2014 final decision, the Agency found no breach. The Agency stated that in regard to allegation a, Complainant asserted that in October 2013, Agency management led her to believe that it would extend her IPA opportunity for the 2014 year. Complainant further asserted, however, that in November 2013, the Agency rescinded the opportunity because "management made a big mistake," and could not approve the 2014 IPA extension. The Agency stated, however, that provisions 2 and 3 state that the "Agency agrees to fully fund the IPA for two consecutive years" and that the IPA "may be renewed for up to one year at the discretion of EPA." The Agency stated that there was nothing in the agreement which could be reasonably construed as including a fourth IPA year. Therefore, the Agency found no breach concerning allegation a.
With respect to allegations b - e, Complainant alleged that upon returning from the IPA on January 2, 2014, Agency management failed to assign her to her position of record, which she believed was Associate/Supervisory Human Resources Officer position. Complainant asserted that the Agency instead assigned her "unclassified" duties. Complainant further alleged that as of January 21, 2014, she did not have a position title or any "official" work. The Agency noted that provision 8 states that Agency management will only "maintain a GS-14 level position of record and return to job rights, within Region 5." Specifically, the Agency determined that the terms of the subject provision does not entitle Complainant the same position she had prior to the IPA nor does it specify her reporting relationship or her eligibility for bargaining unit status. Therefore, the Agency found no breach concerning allegations b - e.
Regarding allegation f, Complainant alleged that upon her return from the IPA, Agency management reassigned her work location to a small cubicle, which was away from a window and had been previously assigned to "clerical staff, intern students and newer GS-13s." Complainant further alleged that the work location reassignment indicated a "reduction in stature," and an intent to place her in a "demeaning status" because in her region's practice, cubicles and office space locations are based on seniority and grade levels.
Further, Complainant alleged that her reassignment violated the terms of provision 8 which states Agency management would "maintain a GS-14 level position of record and return to job rights." The Agency noted, however, provision 6 which specifically addresses Complainant's work station, provides that Agency management "agrees to continue to provide the Complainant with a functional workstation which includes a phone, computer, chair, etc. and continued computer communication tools, such as email and security data token, AAA Token access and the complainant's ID card and credentials will remain activated with the current access and egress it currently has." The Agency noted that the instant agreement does not specify a large cubicle, a window or office space.
Further, the Agency noted the "return to job rights" language in provision 8 while encompassing seniority benefits, cannot be extended to include the ability to retain Complainant's former office space or be placed in a large cubicle with a window. Therefore, the Agency found no breach of allegation f.
Complainant, on appeal, states while there was no breach of provision 6, the Agency erred finding no breach of provisions 2, 3, and 8 of the settlement agreement. For instance, Complainant stated "the settlement agreement under provision 6, was completely executed. During the four years of my IPA, the Agency provided a functional workstation and therefore was not a breach allegation."
With respect to provision 2, Complainant stated that the Agency "encouraged me to continue with the IPA partnership away from the EPA Region 5 office, and gave me two additional fully funded years to continue the work at the University. However, I now believe the IPA settlement agreement was a convenient tool used by the Agency, to keep me away from the regional office for as long as possible, while Region 5 division and offices reorganized."
Further, Complainant stated that according the instant agreement, she should never have been placed "on unclassified duties. These documents provide evidence of the Agency's breach of the Settlement Agreement and a poor attempt to cover up the unclassified duty status. If the agency was operating in good faith there would have been no documents containing any unclassified duties verbiage or the need to reassign me to a newly created program analyst position."
The Complainant stated that upon her return to the region "the region failed to follow our cubicle guidance. In addition, there was a vacant GS-14 cubicle less than 20 feet away from where I was placed. I was treated differently from other GS-14s for 6 months."
The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we note that Complainant, on appeal, stated that the Agency was in compliance of provision 6. Therefore, we will only address provisions 2, 3 and 8 herein.
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).
The Agency complied with provisions 2, 3, and 8 of the settlement agreement. Provision 2 provides that an Agency affirmative that Complainant would have a 2-year IPA detail assignment following the signing of the instant agreement. The record reflects that Complainant was detailed for two years.
Further, we note that provision 3 provides an Agency affirmative that Complainant's IPA assignment would be fully funded for two consecutive years, and that this assignment agreement could be renewed for up to one year at the discretion of Agency management. The record reflects that Complainant's 2-year IPA detail assignment was extended for a third year.
Moreover, we note that provision 8 provides an Agency affirmative to maintain Complainant's GS-14 level position and have her return to her job rights within Region 5 following the conclusion of her IPA detail assignment. The record reflects that upon her return from the IPA assignment, Complainant was assigned to the position of Management Program Analyst, GS-14 in Region 5 with the same salary, grade level and step as her previous position.
The record contains an email correspondence dated May 8, 2014, between the Human Capital Officer (Officer) and the Supervisory Human Resources Specialist. Therein, the Officer stated that during the relevant period of Complainant's IPA assignment, the Human Capitol Branch structure, at that time, included one (1) GS-15 Human Capital Officer, two (2) GS-14 Section Chiefs (first line supervisors) and eleven (11) non supervisory staff. [Complainant's] IDP ended during January 2014, due to the four year restriction for IDP assignments found in 5 CFR 334.104. Placing [Complainant] or any other individual into a Deputy HCO or Associate HCO position would not have been sound position management, as the Human Capital Branch has sufficient supervisory/management oversight. Further, this would have created a supervisor to employee ratio of 4:11 within the Human Capital Branch."
Further, the Officer stated that Region 5 had reduced Full-Time Employee (FTE) positions "during the last year and will continue to do so, while still filling mission critical positions, until Fiscal Year (FY) 2015 targets are met. As part of Region 5's efforts to meet our FTE targets we submitted and were approved by OPM to conduct a VERA/VSIP. The justification for that requested included, in part, a goal of reducing our supervisory/employee ratio. Placing [Complainant] in a supervisory position would have undermined that stated goal."
The Officer stated after Complainant's IDP and a brief period of being assigning to unclassified duties, she was assigned to a new position "leading Region-wide efforts on the Lean program. The Lean program is of significant importance to Region 5 and a high priority to the EPA, as a whole. [Administrator] has personally shared her strong support of Lean, and it is included in EPA's Cross-Agency strategy on being a High Performing Organization for which all Regions/NPMs are accountable to support. [Complainant's] position, in support of Region 5's Lean program, is 'of like seniority, stature, and pay [emphasis in its original].'"
If Complainant had wanted to be guaranteed a fourth year of her IPA detail assignment, that she would be returned to the same position she had prior to her IPA detail assignment, and be provided a large cubicle with windows, she should have included them as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
The Agency's finding of no breach of provisions 2, 3 and 8 of the November 25, 2009 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 19, 2015
__________________
Date
1 The record reflects that Complainant was on an IPA assignment with DePaul University in Chicago, Illinois. Complainant's assignment was to promote the Agency's mission to increase transparency in environmental decisions and community relations, and to increase student awareness of the federal government as a career choice.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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