EEOC Appeal No. 0120172900
01-31-2018
Natalie F. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Natalie F.,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120172900
Agency No. ARMEADE15JUL02484
EEOC Hearing No. 531-2017-00013X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated July 26, 2017, 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 compliance action Complainant worked at the Agency's U.S. Installation Management Command, U.S. Army Garrison facility in Fort Meade, Maryland.
On May 25, 2017, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that, in exchange for Complainant withdrawing her complaint, the Agency agreed in Paragraph 4, to:
Rescind the removal of the Complainant. Expunge the Complainant's Official Personnel File of the record of the removal.
. . .
Restoration of the sick leave used during the timeframe of the EEO case (2 June 15 to 24 Feb. 16) up to 254 hours.
. . .
Place the Complainant in the position of a NAF Administrative Assistant, pay band 2, at the same pay as her previous position.
Pay Complainant $1,000. The Agency must coordinate with other agencies to effect payment. This may take 45 days or more. The Agency will use reasonable efforts to ensure timely payment, but delay shall not constitute a breach of this agreement.
During a June 6, 2017 physical preceding her appointment to the position of NAF Administrative Assistant at the Child Development Center, Complainant was informed that the Administrative Assistants had to satisfy a 40-pound lifting (and carry) requirement. Complainant was not aware of the requirement. The Activity had not disclosed the requirement before Complainant signed the Agreement. The requirement was not stated in the position description for the position.
Because Complainant had been issued a 15% Permanent Partial Disability (PPD) rating by workers' compensation with a lifting capacity limit of 20 to 25 pounds, she was informed that she could not be medically cleared for appointment to the NAF Administrative Assistant position.
In addition, although any new eligibility determination had not been completed, her former supervisor raised other questions regarding whether Complainant would be able to pass the suitability requirements.
By letter to the Agency dated July 3, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to rescind the removal, expunge the removal from her OPF or place her in the position of a NAF Administrative Assistant.
The Agency concluded that the Agreement contained a "mutual mistake" because it did not take into consideration the lifting requirement. The Agency next determined that no breach of the contract had occurred and that "the Activity had not unreasonably delayed compliance." The Agency's Final Decision directed the Activity to "expeditiously complete its implementation" of the provisions of the settlement agreement. This appeal followed.
On appeal, Complainant maintained that there was no "mutual mistake" and that the Agency erred by not expunging the removal and placing her in the Administrative Assistant position. She also claimed that she was not required to undergo a new suitability background investigation because she remained a current employee with a clearance that remained valid until the year 2020. She contends that the Agency's failure to expunge her OPF allowed her former supervisor "full freedom to use the information concerning the removal to make derogatory employment references" about Complainant and those derogatory references fueled the subsequent adverse actions. Finally, she argues that the Agency reneged by not keeping Complainant on its payroll in the position identified in the Agreement.
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 are not persuaded that there was a "mutual mistake" made by the parties. The Agency was responsible for being aware of any qualification standards for the position it promised to Complainant before it signed the agreement. We further note that the Agency was also aware of Complainant's disability as it apparently resulted from a work-related injury while she was under its employ.
In the instant case, the Agreement required the Agency to rescind the removal and expunge her record. There is no evidence to show that the Agency rescinded the removal or expunged her OPF record. In addition, the Agreement required that she be placed in the position of a NAF Administrative Assistant, pay band 2, at the same pay as her previous position. This did not happen. She also claims that she did not receive the payments authorized under the terms of the Agreement and is no longer receiving any salary, because the Agency states that it has not identified an available position, for which Complainant is deemed suitable for employment.
Further, the Agreement did not state that the position required Complainant to meet a 40-pound lifting restriction. We note that it does not appear that the parties exhausted looking at reasonable accommodations to address this situation. The Agreement did not state that her placement was subject to a new suitability determination. Complainant had a current suitability determination that remained valid.
We find that Complainant has provided sufficient evidence to support her claim that the Agency is not in compliance with the terms of the Agreement. Accordingly, the Agency must comply with the provisions of the settlement agreement pursuant to the following Order.
Finally, we note that our analysis pertains solely to the breach claim. In other words, we do not address Complainant's claims regarding other actions that occurred subsequent to the execution of the Agreement. To the extent that she wishes to raise new claims of discrimination or reprisal regarding actions or incidents that occurred after the date of the Agreement which are not related to the implementation of the Agreement, she would have to raise those claims with an Agency EEO Counselor.
CONCLUSION
Accordingly, we find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's Final Decision and we REMAND this matter to the Agency for action consistent with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision was issued, the Agency is ordered to comply with all the terms of the May 25, 2017 settlement agreement and provide a compliance report detailing its actions to Complainant and the EEOC Compliance Officer referenced below.
As part of this compliance, the Agency shall retroactively place Complainant in the position of a NAF Administrative Assistant, pay band 2, at the same pay as her previous position, retroactive to 30 days after the effective date (May 25, 2017) of the settlement agreement, and provide her with an appropriate back pay award for this period for any time she was not paid. If due to her disability, Complainant needs a reasonable accommodation to perform in this position, the Agency shall engage in an interactive process to determine what accommodation may be necessary.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she 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 thirty (30) calendar days of the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 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. 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 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 (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
January 31, 2018
__________________
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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