0120151751
03-02-2017
Joelle L.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joelle L.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.
Appeal No. 0120151751
Agency No. AMS201300511
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 20, 2015, 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 Fruit and Vegetable Marketing Specialist, Agreements and Order, at a the Agricultural Marketing Service (AMS) facility at a location unspecified in the record. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 25, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(3) The Agency agrees to fund a detail in the Office of the Judicial Officer (OJO). The detail shall commence within seven (7) calendar days of this Agreement's effective date and will continue for a period not to exceed nine (9) months thereafter. The nine (9) month period begins on approximately August 20, 2014 and concludes May 16, 2015; and includes any periods of leave and holidays. Complainant understands that the Agency's sole responsibility regarding this provision is the funding of the detail, and the actual duration of the detail, not to exceed nine (9) months, is to be determined by the OJO. If OJO terminates the detail, other than for cause, before the nine (9) month period has expired, the Agency shall place the Complainant on Administrative Leave for the duration of the detail. The OJO shall be responsible for maintaining time and attendance records, approving leave and evaluating performance. Complainant further understands and agrees that the Agency makes no promises, representations, or guarantees regarding the substance or nature of the detail, and this does not constitute an offer of a permanent full time position with OJO or any other program within [the Agency].
(5) The Agency shall restore up to two hundred forty (240) hours of advanced sick leave and up to one hundred four (104) hours of advanced annual leave in order to bring the Complainant's advanced sick leave and advanced annual leave balances to zero based on the amount of hours used between February 2014 and the effective date of this agreement. Complainant understands and agrees that this leave shall be used in the future and shall not be applied retroactively. Complainant further understands that the credited annual leave will be added to her total annual leave balance, and will be subject to the 240 hour use or loose limitation at the end of the 2014 leave year, which is January 10, 2015. Complainant's sick and annual leave will accrue pursuant to leave regulations.
(7) The Agency shall change Complainant's rating of record for FY 2012 and FY 2013 from "superior" to "outstanding" within (15) fifteen calendar days of this Agreement's effective date. . . . Complainant's FY14 md FY15 performance evaluations and ratings, to the extent there are any, shall be conducted by the OJO.
By letter to the Agency dated January 9, 2015, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency: failed to comply with the provision that "OJO shall be responsible for maintaining time and attendance records"; failed to provide a performance evaluation for Complainant; failed to fully restore Complainant's leave balance; and failed to change Complainant's ratings of record for FY 2012 and 2013. Complainant further raised additional allegations of discrimination which are not at issue in this Decision.
In its April 20, 2015 FAD, the Agency concluded no breach occurred.
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).
Time and Attendance Records
In the instant case, with regard to the allegation that the Agency failed to comply with the provision that OJO "be responsible for maintaining time and attendance records," Complainant maintained that her payroll was "still being handled through AMS. This has caused several problems and continues to require [Complainant] to deal with AMS." In its FAD, the Agency found that:
Complainant does not have any direct communication with AMS. According to AMS, the Complainant is still an employee of AMS and is still compensated by AMS; therefore, OJO cannot input her time and attendance directly into the WebTA system. The Agency states that OJO is responsible for approving the Complainant's leave and documenting her time and attendance sheet by completing a hard copy time and attendance form each pay period. After OJO approves the hard copy time and attendance sheet an administrative contact scans the document and emails it to AMS for electronic entry and approval in WebTA, the Agency's payroll.
FAD, p. 2.
In response, Complainant maintains that she:
[C]ontinues to receive communications from AMS personnel - [AP] at present - regarding her time and attendance records, and payroll issues. As recently as May 15, 2015, AP cc'd Complainant on an email concerning her temporary assignment in which she asked Complainant's then first-line supervisor, [S], for a written memorandum informing AMS that Complainant had accepted a temporary assignment with ... (OJO). [AP] requested this written memorandum, even though the Settlement Agreement did not require such a written memorandum to memorialize that Complainant had accepted another position with the federal government. The Settlement Agreement merely required that Complainant notify
[MD] that she had found other employment within the federal government, which Complainant did on May 14, 2015.
Complainant's Appeal Brief, p. 4.
We note initially that with regard to any communications between employees of AMS and OJO, including Complainant, we find that such communications do not constitute a breach of the Settlement Agreement. The Agreement does not state that there should be no communication of any kind between Complainant and employees of AMS, merely that OJO would be "responsible for maintaining time and attendance records." As regards AP's email to S, since S is not a party to the Settlement Agreement and the Agreement does not prohibit communications between S and anyone at AMS, we do not find such communication, nor the request to S that he submit to AMS a memorandum informing AMS that Complainant had accepted a temporary assignment, to be indicative of a breach.
With regards to whether or not OJO is "responsible for maintaining [Complainant's] time and attendance records," we note that the Agency's admissions that "OJO cannot input her time and attendance directly into the WebTA system," Agency's Appeal Brief, p. 3, and that "[a]fter OJO approves the hard copy time and attendance sheet an administrative contact scans the document and emails it to AMS for electronic entry and approval in WebTA, the Agency's payroll," id., establish that Complainant's time and attendance records are being "maintained" by either AMS or the Agency's payroll department, but not by OJO. While the Agency argues that OJO is "unable" to process Complainant's records independently because Complainant "is an AMS employee and is being compensated by AMS," id., Complainant points out on appeal that "the Agency in the present matter should have been aware of any issues of having OJO maintain Complainant's time and attendance records - when it fully knew Complainant would remain an AMS employee while on detail to OJO - at the time the Agency entered into the Settlement Agreement with Complainant." Complainant's Appeal Brief, p. 8. We agree. We therefore find the Agency to be in breach with regards to this provision.
Performance Evaluation
Complainant maintains that, as of the date of her appeal she had not received a 2014 performance evaluation, in violation of the provision that "OJO shall be responsible for . . . evaluating performance." In its FAD, the Agency found that:
Per the Department Directive 4040-430, employees placed on a formal performance plan after August 16 of the rating year will have their performance evaluation deferred until the end of the next performance year. It is undisputed that the Complainant did not begin her detail OJO until after August l6, 2014; therefore, she would not be entitled to a performance evaluation until the end of FY 2015.
FAD, p. 3.
Complainant argues that, in the absence of a specified time for performance, the Agency should be provided a reasonable amount of time, and that it is unreasonable for the Agency to make Complainant wait almost an entire year before issuing her 2014 performance appraisal. On appeal, the Agency contends that the:
Agreement further specifies that 'Complainant's FY14 and FY15 performance evaluations and ratings, to the extent there are any, shall be conducted by the OJO.' Thus, Complainant was not eligible to receive a performance appraisal, and the OJO was under no obligation to issue her one. . . . [T]he Agency did not agree to issue Complainant a performance appraisal, let alone issue it by a specific deadline. The Agency merely specified that the OJO will be the entity responsible for evaluating Complainant's performance in the event Complainant was entitled to a performance appraisal.
Agency Appeal Brief, p. 4 (citations and emphasis omitted).
Following a review of the record, we agree. We note initially that, notwithstanding Department Directive 4040-430, Complainant would be entitled to a performance evaluation in a reasonable amount of time were she entitled to such an evaluation at all. However, the plain language of the Agreement says merely that OJO would be responsible for evaluating performance, not that OJO would issue a performance appraisal or that Complainant was entitled to receive one. Accordingly we find no breach with regard to this provision. While the delay in receiving a performance evaluation may have harmed Complainant's outside employment opportunities, and the Agency may have been aware of Complainant's efforts to seek outside employment, that does not constitute a breach of the Agreement. Complainant may, however, seek to file a new claim alleging discrimination and reprisal regarding the delay/non production of her performance evaluation.
Restoring Complainant's Leave Balance
Complainant argues that "[t]he Agency has not restored the specified leave balances. Rather, to date, the Agency has only restored 228 hours of sick leave and 52 hours of annual leave. Thus, [Complainant] is still owed 12 hours of sick leave and 52 hours of annual leave." January 9, 2015 Letter to Agency Alleging Breach, p. 2. In its FAD, the Agency found that:
[T]he Agency provided documentation showing that the Complainant's advanced annual leave and advanced sick leave balances were restored to zero balances as required under the Agreement. We note that the Agreement only requires the Agency to restore the Complainant's leave balances to zero. The Complainant incorrectly states that the Agency failed to grant her 12 hours of sick leave and 52 hours of annual leave. The Complainant argues that the Agency was required to restore her 240 hours of advanced sick leave and 104 hours of advanced annual leave. However, the Agreement states, in plain language, that 'the Agency shall restore up to two hundred forty (240) hours of advanced sick leave and up to one hundred four (104) hours of advanced annual leave in order to bring the Complainant's advanced sick leave and advanced annual leave balances to zero based on the amount of hours used between February 2014 and the effective date of this agreement.'
FAD, pp. 3-4
Following a review of the record we agree that the Agency has not breached this provision of the Agreement. The Agreement commits the Agency to restoring "up to" 240 hours of sick leave and "up to" 104 hours of annual leave, which means restoring less than those amounts does not constitute a breach of the Agreement as long as both leave balances were restored to zero. Indeed Complainant appears to concede on appeal that no breach occurred. See Complainant's Appeal Brief, p. 12.
Changes to Complainant's FY 12 and FY 13 Ratings
Complainant argues that while the Agency changed Complainant's FY 12 & 13 ratings from "superior" to "outstanding," it was not until eight months later that the Agency updated the performance ratings in eOPF, the Government-wide Electronic Official Personal Folder. The Agency argues that it timely provided Complainant the changes in a Form AD-435 and:
[t]he Agreement does not specify when the ratings will be recorded in eOPF. Moreover, the Settlement Agreement is silent on the subject of ratings being made part of the eOPF. Notwithstanding, the Agency has since made the changes to the eOPF reflecting that Complainant received 'outstanding' rating for FY 2012 and FY 2013. Thus, any breach otherwise alleged by the Complainant, has been cured."
Agency Appeal Brief, p. 5
Complainant contends that, contrary to the Agency's argument, the harm she incurred due to the Agency's delay in updating the eOPF system "has not been cured" because the Agency knew that Complainant was seeking outside employment and that
[W]ithout her ratings also being updated in the eOPF until over eight months after the Settlement Agreement was executed, Complainant received no valuable consideration for withdrawing her underlying complaint since eOPF is the system all federal government agencies use in verifying employment and performance evaluation records of federal government employees. . . . Having an updated Form AD-435, without the concomitant update in eOPF, is virtually meaningless
to Complainant when she must apply for other work within the federal government at the conclusion of her detail position - a result fully comprehended by the Agency when it entered into the Settlement Agreement with Complainant.
Complainant's Appeal Brief, pp. 13-14.
Following a review of the record we find that the Agency breached the Agreement when it failed to timely update eOPF to reflect the changes for FY 12 & 13. While the Agreement does not specifically mention making any changes to eOPF it does not specify making the changes to Form AD-435 either. Under the Agency's argument it could have made the changes on a notepad, or even a napkin, and as long as the changes were timely made, it would not be in breach of the Agreement. We disagree. We find that the eOPF system is part of the government-wide system of personnel records and as such is included in the phrase "rating of record" from the Agreement. While we recognize that changes to eOPF often take a while and it may be impossible to change records in that system within fifteen calendar days, eight months is not a reasonable amount of time to change Complainant's records in eOPF.
When we find a breach, we have two choices: specific performance or reinstatement of the underlying complaints. If Complainant choses to reinstate her underlying complaint, she would have to return to the status quo (i.e. returning the previously paid sum of $15,000.00 that included attorney's fees, and returning the restored annual leave and sick leave). We therefore provide Complainant with the option of specific performance or reinstatement of her underlying EEO complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency breached the Agreement when it failed to comply with the provision that "OJO shall be responsible for maintaining time and attendance records," and failed to timely change Complainant's ratings of record for FY 2012 and 2013. We therefore VACATE the FAD and REMAND the claim for further processing in according with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following action:
Within 15 days of the date of this decision, the Agency shall notify Complainant of her option either (a) to return to the status quo prior to the signing of the August 25, 2014 settlement agreement and having her underlying complaint reinstated or (b) having the terms of the settlement agreement be specifically enforced.
The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice within which to notify the agency of her choice.
Complainant shall be informed that in order to return to the status quo ante, she must return any benefits received pursuant to the agreement. If Complainant elects to return to the status quo ante, and all benefits (i.e. the payment of $5000.00, 228 hours of sick leave and 52 hours of annual leave, and the changes made to Complainant's FY 12 & 13 appraisal) are returned, the Agency shall resume processing Complainant's underlying complaint from the point processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. If, however, Complainant elects not to return to the status quo ante, the Agency shall notify Complainant that the terms of the settlement agreement will be specifically enforced.
A copy of the Agency's notice to Complainant regarding her options, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying complainant that the terms of the agreement will be specifically enforced and evidence of such performance, must be sent to the Compliance officer, as referenced below.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 2, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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