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

Equal Employment Opportunity Commission

Feb 21, 2013

0120120177 (E.E.O.C. Feb. 21, 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 Reclamation),
Agency.

Appeal No. 0120120177

Agency No. BOR-06-0558

DECISION

Complainant filed an appeal with this Commission from a Final Decision by the Agency dated
August 25, 2011, finding that it was in compliance with the terms of the settlement agreement
into which the parties entered. For the following reasons, we AFFIRM the Agency’s Final
Decision.

BACKGROUND

Complainant worked as a Repayment Specialist at the Agency’s South Central California Area
Office facility in Fresno, California. Complainant contacted an Agency EEO Counselor to
initiate the EEO complaint process and on July 21, 2006, Complainant and the Agency entered
into a Settlement Agreement to resolve the matter. The Settlement Agreement provided, in
pertinent part, that:

1. That [Complainant], with [S1], will assess projects managed by [Complainant] and
assign a time-related weight to phases of the projects as a tool for measuring and
reporting work load and resource allocation within 30 days of agreement;

. . . .

3. That should [Complainant’s] and [S1]’s weighting estimates be so divergent as to be
irreconcilable, the parties will utilize the resources of a disinterested Reclamation
employee that has a comparable project management role to provide an alternative
perspective on the time needed to complete project tasks. This option will be available
for [up] to 90 days, with option to renew by agreement of the parties;
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4. That conversations between [Complainant] and [S1] that may be corrective or
disciplinary in nature will be conducted in a private setting and that conversations
between [Complainant] and [S1] that directly relate to [Complainant’s] performance
evaluation, be accomplished in the presence of a neutral third party[.] [T]his option to
be available through the midyear review for 2006;

5. [S1] assures [Complainant] that assessment of [Complainant’s] performance will not
include comparison with the performance of [Complainant’s] similarly situated co-
workers;

6. That [S1], with [Complainant], will determine (by name) all projects deemed to be
arranged by [Complainant] and that [Complainant] will be expected to determine on the
basis of appropriate criteria, e.g., priority level and workload if meetings require her
personal or teleconference participation. [Complainant] will be included in
communications regarding her assigned projects to the extent that she is available;

7. That [Complainant] continue to attend SCCAO RMD Chiefs meetings when
[Complainant] has been designated as Acting for [S1];

8. That [Complainant] will attend all FWA Engineers/Managers meetings where water
supply is a component . . .

9. That [Complainant] may coordinate and propose an agenda for one meeting among
SCCAO’s Repayment Team . . .

10. That [Complainant] and [S1] commit to mutually respectful and clear communication,
such as: 1) identifying when a conversation may be brainstorming or direction giving;
2) Utilizing appropriate titles (i.e., [Complainant] as Project Manager rather than
Assistant); and 3) verbally communicating discomforts and requests for change in the
moment experienced. Additionally, [Complainant] and [S1] will periodically "check in"
with one another about the quality of their communication;

11. That [Complainant] and [S1] will identify and request [A]gency support to attend a
mutually agreeable diversity sensitivity program together;

12. That [Complainant’s] Performance Plan will be reviewed consistent with Office of
Personnel Management policy by the SCCAO Administrative Officer to ensure that the
measureables are commensurate with GS-1101-12 and that [Complainant] and [S1] may
consider in 2007 a more standardized Plan among other MP Region Repayment
Specialists;

13. That [Complainant] is assured that any work load assignments or changes within [S1]’s
area will not intentionally negatively affect [Complainant’s] GS-12 level;
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14. That [Complainant] is assured that she has the same rights as other federal employees to
communicate with upper level management;

15. That [S1], with her supervisor, [S2], will re-clarify, create, and/or write organizational
expectations and policies regarding employee reporting and accountability, travel,
purchasing (requisition), training, leave and time use policies (flex, credit and
compensatory time);

. . . .

17. Both [Complainant] and [S1] will seek and practice strategies for effective
communication between them.

We note that many of the other provisions in the Settlement Agreement are requirements to be
completed/performed by Complainant.

Complainant alleged that the Agency was in breach of the Settlement Agreement by failing to
comply with provisions (1), (3) - (7), (10) - (15), and (17). In its August 25, 2011 Final
Decision, the Agency concluded that Complainant presented no evidence to establish that any
breach of the Settlement Agreement occurred. The Agency noted that regarding provision
(11), Complainant acknowledged that Complainant and S1 had attended sensitivity training as
required. Regarding provision (7), Complainant acknowledged that no meetings described in
this provision occurred while Complainant was acting for S1. The Agency noted with regard
to the remaining allegations that “[t]he record does not include documents or a statement by
Complainant’s supervisor, S1”, to whom most of the Agency’s obligations under the
Agreement are assigned. The Agency found that S1 was reassigned to the National
Environmental Policy Act (NEPA) effective March 5, 2007, and that as of August 2009, S1 no
longer works for the Agency. The Agency further found that during the investigation of the
breach claim, S1 could not be located for comment. Additionally, the Agency found that S2,
an Agency official identified in the Settlement Agreement as S1’s supervisor, also no longer
works for the Agency. The Agency found that Complainant failed to show that the Agency
did not comply with the terms 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
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
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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).

We find the plain meaning of the identified Settlement Agreement provides specific steps to be
taken by Complainant and her supervisor at that time, S1. Those steps include actions between
Complainant and S1 that, in most instances contemplated by the Agreement, would not
ordinarily be documented (or, if documented, only by S1). For example, provision (4) states
that conversations between S1 and Complainant that may be corrective are to be conducted in a
private setting. We find that with the departure of S1 and in the absence of any statement from
S1, the Agency properly concluded that its compliance or failure to comply cannot be
ascertained with similar provisions.

We further find that some provisions, for example such as provision (17) contain terms that
are too vague to be enforced. Specifically, there is no method to adequately determine if S1
sought and practiced strategies for effective communication as required in provision (17). As
noted by the Agency, with the removal of S1 as Complainant’s supervisor, the purpose of these
provisions is frustrated. Additionally, we find that provision (14) does not provide
Complainant with any consideration to which she is not already entitled as a federal employee.

We find that in the absence of any statement from S1, the record does not disclose the status of
the remaining provisions, aimed at resolving communication issues and to clarify performance
expectations between S1 and Complainant. Ultimately, however, the burden is on
Complainant to show non-compliance with the Settlement Agreement and we find that she has
failed to do so. Similarly, we find that Complainant has not presented evidence that more
likely than not S1 failed to fulfill the Agency’s enforceable obligations under the Agreement
prior to her departure.

Additionally, we note that Complainant does not allege that she was denied the opportunity to
attend the identified meetings in provision (8) or the opportunity to propose the agenda for one
meeting in provision (9)).

CONCLUSION

We AFFIRM the Agency’s Final Decision finding that no breach of the Settlement Agreement
occurred as alleged.

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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
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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 21, 2013
Date