0120132827
09-19-2014
Complainant, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
Complainant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120132827
Agency No. HUD-00062-2010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision (FAD), dated May 14, 2013, 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 a Program Analyst at the Agency's Office of Fair Housing & Equal Opportunity, Education and Outreach Division (FHEO) facility, in Washington, DC.
On March 1, 2011, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The Agreement was signed by Complainant on February 16, 2011 and was effective on March 1, 2011, with the signature of the Agency representative. The settlement agreement provided, in pertinent part, that:
(4) The Department agrees to reassign Complainant to the position of Program Analyst, GS-343-14-04, Office of Fair Housing and Equal Opportunity, Education and Outreach Division, Washington, D.C. (Headquarters), from the Greensboro FHEO Field Office position of Equal Opportunity Specialist, GS-360-13-10, within 30 calendar days after this Agreement has been fully executed.
(5) If the Complainant alleges that subsequent acts of discrimination or reprisal violate the Settlement Agreement, the Complainant will follow the procedures outlined in 29 CFR 1614.105 et. seq. The Department will process the new allegations as a separate complaint.
(7) This Settlement Agreement and General Release sets forth the entire Agreement between the Parties.
(9) If the Complainant believes that the Department has failed to comply with the terms, or rescinds any action specified by this Settlement Agreement for any reason not attributable to acts or conduct of the Complainant, within 30 days of the day she knew or should have known of the alleged noncompliance, the Complainant shall notify the Director of Equal Employment Opportunity in writing of the alleged noncompliance.
On February 27, 2011, the Agency reassigned Complainant to the position of Program Analyst with FHEO in Washington, DC. This record includes the Notification of Personnel Action (SF-50) (SF-1).
On June 19, 2011, the Agency added additional duties and reassigned Complainant to the position of Education and Outreach Specialist. She was switched to a different job series and taken out of the bargaining unit when her bargaining unit series changed. Complainant was told about the title change after it happened. Complainant objected to the change. Her supervisor indicated that she "would ask Personnel to change it back." Meanwhile, Complainant was given standards for the Education Outreach Specialist position.
Complainant maintains that the title change violated the Agreement, because she agreed to work as a Program Analyst, not an Education Outreach Specialist. The record is unclear with regard to when Complainant first notified the Agency of her breach claim. The Agency maintains that it did not receive written notification of the alleged claim of breach of the settlement agreement until January of 2013. Complainant acknowledges that she did not pursue a breach claim in writing. Instead, she checked back every three months with regard to the status of her request for correction of her record.
The Agency asserts that it cured any breach once Complainant notified the Agency of her claim that the Agency breached its obligation to assign her to the Program Analyst position and that the subsequent changes caused other unintended consequences (such as removal from the union) by its reassignment of Complainant to a different position. Complainant did not specify whether she was seeking reinstatement of her underlying complaint or compliance.
In its May 14, 2013 FAD, the Agency found that it took actions to convert Complainant's title back to Program Analyst and to amend her bargaining status. The Agency concluded it was not in breach of the agreement.
This appeal followed.
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, we find that the Agency was bound by its commitment to reassign Complainant to a specific position, job series and grade. The settlement agreement did not contain language that Complainant's duties could not be adjusted or additional responsibilities added. In addition, the agreement did not guarantee or specify the duration of the commitment. In this case, however, the Agency acknowledged that it breached the Agreement when it modified Complainant's job title and series and caused her to lose her bargaining unit employee status. The agreement also required Complainant to provide the Agency written notice of her breach concerns. She provided notice in January of 2013. Assuming there was a breach, we find that the Agency took steps to remedy the breach. The record sufficiently documents that the Agency is in compliance.
In addition, we note that, on appeal, Complainant argues that the Agency retaliated against her when it changed her job title and delayed correcting the situation. This matter was not the subject of the settlement agreement. Further, the settlement agreement provided that any new claims of discrimination or reprisal should be raised as separate claims. Complainant is advised that if she wishes to pursue, through the EEO process, the additional reprisal claims she raised for the first time on appeal, she shall initiate contact with an EEO Counselor within 15 days after she receives this decision. The Commission advises the Agency that, if Complainant seeks EEO counseling regarding the new claims within the above 15-day period, the date Complainant filed the appeal statement in which she raised these claims with the agency shall be deemed to be the date of the initial EEO contact, unless she previously contacted a counselor regarding these matters, in which case the earlier date would serve as the EEO Counselor contact date. Cf. Qatsha v. Dep't of the Navy, EEOC Request No. 05970201 (Jan. 16, 1998).
Accordingly, because we find that the Agency took corrective actions to cure its non-compliance with the terms of the Agreement, we find no breach.
CONCLUSION
We AFFIRM the Agency's final decision.
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 tends 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
September 19, 2014
__________________
Date
2
0120132827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132827