Complainant,v.Ken L. Salazar, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120120314 (E.E.O.C. Jun. 14, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120120314

Agency No. BLM-10-0033

DECISION

Complainant filed a timely appeal with this Commission from a final decision by the Agency
dated September 28, 2011, finding that it was in breach of term E of the settlement agreement.
For the reasons set forth, we AFFIRM the Agency’s decision finding breach with term E of
the settlement agreement, ordering specific performance of the agreement.

BACKGROUND

The November 27, 2009 settlement agreement provided, in pertinent part, that:

A. Management will initiate a cash award of $2,000 (net sum after taxes) to the
Complainant, no later than December 18, 2009.

B. Management will promote the Complainant to a GS-12, Step 7, no later than
December 18, 2009.

C. Management will reassign the Complainant to the Information Technology (IT) Security
Division, WO-590, no later than December 18, 2009.

D. Management will adjust the Complainant’s FY10 critical elements to reflect a work
focus on Privacy Act Aspects of IT Security, with some additional responsibilities
pertaining to privacy aspects of FOIA request, no later than December 18, 2009.

E. Management will develop a proposed GS-13 Privacy Act Specialist position and submit
to the Human Resources Division for classification and recruitment no later than
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January 15, 2010. The position will be located in the IT Security Division, WO-590
and reflect a work focus on Privacy Act aspects of IT Security, with some additional
responsibilities pertaining to privacy aspects of FOIA requests.

F. Management will support the Complainant with the work time and expenses necessary
for the Complainant to pursue credentialing as a Certified Privacy Official, as well as to
either: (a) attain Project Management Certification or (b) pursue appropriate
professional training dealing with the intersection of IT Security and the Privacy Act, at
the discretion of the Complainant; all to occur within one year from the date of this
agreement.

G. Management will convene a meeting by January 31, 2010, consisting of the
Complainant, [the Chief Information Security Officer], [the Deputy Chief Information
Officer] and [Privacy Act Officer] for the purpose of discussing opportunities available
for improving workplace relationships and communication. Further, management will
provide the work time and expenses necessary to accommodate subsequent voluntary
workplace coaching and conflict mediation with the assistance of a CORE-Plus
mediator as may be requested and mutually agreed by any of those parties.

In letters dated March 3 and June 1, 2010, Complainant alleged that the Agency breached term
E of the settlement agreement. In its September 28, 2011 decision, the Agency concluded that
the Agency had breached term E of the settlement agreement. The Agency found that
Complainant did not want her settled complaint reinstated. Therefore, the Agency stated it
would implement term E of the settlement agreement.

On appeal, Complainant argues that the Agency breached term E of the settlement agreement
and has continued to discriminate against her. Complainant requests that the Agency’s
decision with respect to term E be upheld. Complainant also requests compensatory remedies.1

In response to Complainant’s appeal, the Agency states that Complainant did not want her
complaint reinstated and that the Agency has directed the Bureau of Land Management to
implement term E of the settlement agreement.

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

1 Although Complainant had alleged other provisions of the settlement agreement had been
breached, those allegations of breach have been abandoned on appeal.
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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).

Both parties admit that term E of the settlement agreement has been breached. Complainant
wants specific enforcement of term E rather than reinstatement of the settled complaint.
Therefore, we shall order the Agency to specifically enforce term E of the settlement
agreement. Apart from attorney’s fees (if Complainant was represented by an attorney), no
other remedies are appropriate.

To the extent that Complainant is alleging subsequent acts of retaliation and discrimination
occurred, she should contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105 if she
wishes to pursue a separate complaint of discrimination under 29 C.F.R. § 1614.106 (if she
has not done so already). The Commission does not address in this decision whether such a
claim would be properly dismissed for any reason pursuant 29 C.F.R. § 1614.107.

CONCLUSION

The Agency’s decision finding breach with term E of the November 27, 2009 settlement
agreement and ordering specific performance of term E is AFFIRMED. The matter is
REMANDED to the Agency for further processing in accordance with the Order herein.

ORDER

Within 30 days of the date that this decision becomes final, the Agency must comply with
term E of the November 27, 2009 settlement agreement. A letter will be sent to Complainant
within 30 days of the date this decision becomes final stating that the Agency has complied
with term E of the settlement agreement and providing evidence to Complainant of such
compliance. A copy of that letter and evidence of compliance shall be sent to the Compliance
Officer referenced herein.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be
paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not
to the Equal Employment Opportunity Commission, Office of Federal Operations -- within
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thirty (30) calendar days of this decision becoming final. The Agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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), 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
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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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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
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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

June 14, 2013
Date