0120150671
05-19-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120150671
Agency No. DOI-OS-09-0468
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 3, 2014, 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 an Attorney-Advisor at the Agency's Office of Hearings and Appeals (OHA), Director's Office, White Earth Land Settlement Act Hearings Division, in Bloomington, Minnesota.
On June 3, 2011, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(3) Within 21 days of the effective date of this agreement, the Agency agrees to convert Complainant from an employee in a term appointment to an employee in a full-time permanent appointment with a duty station in the Twin Cities Metro area, in Minnesota.
. . .
(6) The parties agree that this Settlement Agreement constitutes the entire agreement between the parties and that no other promises, agreement, or conditions have been entered into other than those set forth herein.
This is Complainant's second breach claim regarding this settlement agreement. On June 9, 2013, Complainant alleged that OHA breached the Agreement when it did not fully staff her office. In her June 2013 breach claim, Complainant did not allege that the Agency failed to convert her to a permanent position. In a September 30, 2013 determination letter, the Agency found it complied with the Agreement. The Agency noted that "[r]egarding Term 3, the Agency converted the Complainant from a term appointment to a full time permanent appointment with a duty station in the Twin Cities Metro area in Minnesota." Complainant did not file an appeal from that decision.
Turning to the instant breach claim, Complainant notified the Agency of her breach claims by letters dated June 19, 2014, and a September 17, 2014 "Addendum to Breach Settlement Agreement based on newly discovered information." She alleged that the Agency was in breach of the settlement agreement paragraph 3, because her position continued to be identified as "career conditional" on the Standard Forms 50 (SF-50) that were issued for Complainant after the settlement, but prior to May 2014. She sought specific enforcement of the Agreement. She also claimed that the Agency used a Reduction-in-Force (RIF) procedure to circumvent the Agreement. The Agency gave Complainant notice of its intention to abolish her position, effective July 22, 2014.
Although Complainant's position was listed as career conditional serving a probationary period, the record shows that Complainant held the attorney position, full-time, for three years following the execution of the Agreement. Complainant fulfilled the probationary period requirement as of June 2014. After Complainant raised the issue regarding the SF-50 still reflecting the career-conditional status, the Agency changed the SF-50 to reflect Complainant's tenure as permanent, on or after May 20, 2014. The Agreement required that the Agency convert Complainant to a permanent position within 21 days of the effective date of the Agreement. This meant that Complainant's status should have been permanent as of June 24, 2011.
In its Letter of Determination, the Agency concluded that it complied with the terms of the Agreement. The Agency reasoned that Complainant's position was converted to a permanent position on June 19, 2011. In addition, the Agency stated that its first finding of compliance should not be reconsidered, because Complainant did not file an appeal from the decision. Next, the Agency found that the new appeal was untimely filed because Complainant filed the current breach of settlement claim more than two years after she knew, or should have known, of the alleged non-compliance. The Agency found no breach.
This appeal followed. In addition, Complainant filed an appeal with the Merit Systems Protection Board (MSPB). On appeal, she requests to amend her pending EEOC complaints to raise new claims with the Agency.
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).
We find the Agreement to be valid and binding.
In the instant case, the Agency agreed to convert Complainant from a term appointment to a full-time permanent appointment with a duty station in the Twin Cities Metro area, in Minnesota. The Agency claimed that it did convert Complainant to a permanent position in 2011. It is undisputed that Complainant served in the attorney position for several years after the settlement agreement was signed.
Further, the Agreement did not impose a probationary period. To the extent that Complainant's permanent status was contingent on completion of a probationary period, she met that condition in June of 2014. The Agreement, however, did not guarantee that the position would continue ad infinitum.
The Agreement also did not specifically reference the tenure block on the SF-50 form. To the extent that her tenure status on the SF-50s was not changed within 21 days of the execution of the Agreement, we find this could constitute a breach. However, the record shows that the Agency issued Complainant a corrected SF-50, showing her tenure as permanent, after Complainant notified the Agency of her breach allegation.
The Commission has held that pursuant to 29 C.F.R. � 1614.504(b), an agency has 35 days from the receipt of notice of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35 day period following the breach notification, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
We find that to the extent that the Agency's actions constituted breach, the Agency's actions of providing a corrected SF 50 reflecting her permanent status cured any such breach. We find, therefore, that the Agency complied with the Agreement.
Finally, we confine our decision to the subject breach issue. We would be remiss, however, if we failed to mention that we are troubled by the evidence that Complainant's position was the only position negatively impacted by the Reduction-in-Force and that her position may have been targeted for elimination shortly after the Agency recognized her tenure as permanent. If Complainant's converted position was the only position eliminated, and she was the only employee who was issued a notice of separation, that could be construed as evidence of retaliation. This is a matter to be addressed in Complainant's other pending EEO complaints and/or her MSPB appeal regarding her separation from service.
CONCLUSION
For the reasons stated above, we find that the Agency complied with the terms of the Settlement Agreement. We AFFIRM the Agency's Determination.
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
May 19, 2015
__________________
Date
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0120150671
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150671