Jonelle R., Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.Download PDFEqual Employment Opportunity CommissionJul 12, 20170120171414 (E.E.O.C. Jul. 12, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jonelle R., Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 0120171414 Agency No. P6-15-0216 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 8, 2016, 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 Associate Counsel (Contracts) at the Agency’s DCMA facility in Chantilly, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 12, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2a) Within 30 days of the effective date of this Agreement, Complainant will be duty stationed as an Associate Counsel for Contracts at the DCMA Manassas Contract Management Office (CMO)…Complainant will provide legal advice and services to support the DCMA Manassas Contracts Group and other DSMA offices within the geographic area covered by DCMA Manassas…The Agency reserves the right to assign 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. 0120171414 2 or reassign personnel, workload or supervision, on a temporary or permanent basis, as needed, to address absences, changes in personnel, workload balancing or to support other mission-related requirements.2 By letter to the Agency dated August 20, 2016, Complainant, through counsel, alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant stated that the Agency issued General Order No. FY16-29 which established DCMA Hampton as an independent, primary Contract Management Office (CMO) no longer within the geographic jurisdiction of the DCMA Manassas CMO. Complainant claimed that because the DCMA Hampton CMO was no longer within the geographic area covered by DCMA Manassas as of August 7, 2016, asking her to provide continued legal support to the DCMA Hampton CMO teams after that date contradicted the settlement agreement. Thus, Complainant argued that she should not have been directed to provide legal support to the DMCA Hampton CMO as of August 7, 2016. In its September 8, 2016 decision, the Agency determined that it had not breached the settlement agreement. The Agency noted that Complainant had not provided evidence that she has been assigned any work in support of the DCMA Hampton CMO. Further, even assuming that she had been assigned such work or would be assigned this work in the future, the agreement provided that the Agency “reserves the right to assign or reassign personnel, workload or supervision, on a temporary or permanent basis, as needed, to address absences, changes in personnel, workload balancing or to support other mission-related requirements.” The Agency concluded that this language was inclusive and covered the type of realignment or reorganization outlined in General Order Number FY 16-29. The decision to establish DCMA Hampton as a primary CMO and direct DCMA Manassas to provide legal support was consistent with the plain language of the settlement agreement that permitted the Agency to exercise its prerogative to “assign or reassign personnel, workload or supervision, on a temporary or permanent basis as needed ... to support other mission-related requirements.” As a result, the Agency found that it had not breached the settlement agreement. CONTENTIONS ON APPEAL On appeal, Complainant contends that as of August 7, 2016, the DCMA Hampton CMO was no longer within the geographic area covered by Manassas and for that simple reason Complainant should no longer be required to provide legal support to the DCMA Hampton teams as they are no longer within the geographic area covered by the DCMA Manassas CMO. Complainant argues that the Agency’s interpretation that the “catch-all” provision negated and nullified the “geographic area” provision is legally erroneous. Further, Complainant contends that the easiest 2 Complainant previously filed a breach of settlement claim in April 2016 regarding this settlement agreement alleging that the Agency failed to continue her status as part of the Eastern Regional Command. In Jonelle R. v. Dep’t of Def., EEOC Appeal No. 0120162307 (Oct. 19, 2016), req. for reconsid. denied, EEOC Request 0520170078 (Feb. 28, 2017), the Commission affirmed the Agency’s decision finding no breach of the settlement agreement. 0120171414 3 solution would be for the Agency to assign the three other Manassas attorneys to serve the Hampton teams. Accordingly, Complainant requests that the Commission find that the Agency breached the settlement agreement and order the Agency to specifically perform as previously agreed by not issuing Complainant assignments to serve the Hampton office and other offices outside of the jurisdiction of the DMCA Manassas CMO. 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 (Dec. 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 (Aug. 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 (Dec. 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 present case, the terms of the settlement agreement required the Agency to place Complainant in an Associate Counsel for Contracts position at the DMCA Manassas CMO in Chantilly, Virginia. The agreement stated that Complainant’s duties would include providing legal advice “to support DCMA Manassas Contracts Group and other DCMA offices within the geographic area covered by DCMA Manassas.” At the time of the execution of the agreement, the Agency’s Hampton office was within the jurisdiction of DCMA Manassas CMO. The Agency subsequently issued General Order No. FY16-29 which established DCMA Hampton as an independent CMO no longer within the geographic jurisdiction of DCMA Manassas CMO. The General Order further stated that DCMA Manassas CMO would provide legal support during the stand-up of the DCMA Hampton CMO and that all personnel would remain stationed at their current locations. Complainant concedes that the General Order stated that DCMA Manassas CMO would only provide legal support during the stand-up of DCMA Hampton CMO; however, she speculates that she could be required to provide service to DCMA Hampton CMO indefinitely or even be relocated. Nothing in the record reflects that the parties could or should have anticipated the operational change that underlies Complainant’s present breach allegations. Furthermore, nothing in the record indicates that Complainant would be required to provide legal support to DCMA Hampton CMO beyond the initial stand-up. Thus, the Commission finds Complainant’s contentions are purely speculative as the record supports that the Agency’s assignment of 0120171414 4 DCMA Hampton legal support duties to her was only temporary and based on an unforeseen business necessity. In addition, the settlement agreement provided that “[t]he Agency reserves the right to assign or reassign personnel, workload or supervision, on a temporary or permanent basis, as needed, to address absences, changes in personnel workload balancing or to support other mission-related requirements.” While the record is clear that the parties did not anticipate the issuance of General Order FY16-29 prior to the execution of the settlement agreement, this organizational change was of the type of business exigency contemplated by this provision. Accordingly, based on the unexpected change and temporary nature of the circumstances present, the Commission finds that the Agency has not breached the settlement agreement. The Agency’s letter of determination finding no settlement breach is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 0120171414 5 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 (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 July 12, 2017 Date Copy with citationCopy as parenthetical citation