0120160576
04-12-2016
Priscila F.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Priscila F.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160576
Agency No. DON-13-6146303428
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 13, 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 "Regional CYP Operations Manager" at the Agency's Navy Region Mid-Atlantic Naval Station facility in Norfolk, Virginia.
On March 3, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency will effect a non-competitive, management-directed reassignment of the Complainant as soon as is practicable but no later than April 15, 2014, from her current position, to the position of Installation Child and Youth Program Director (GS-1701-12; Position No. NV52044) (the "Position") at Naval Support Activity - Hampton Roads, which will include oversight over the Hampton Roads Child Development Homes program, and the CYP operations onboard NSA Northwest Annex, Naval Medical Center Portsmouth, and Norfolk Naval Shipyard. The Position will report directly to the MWR Director of Naval Support Activity - Hampton Roads. The Agency certifies that it currently has no plans to abolish the Position, nor does it intend to downgrade it or convert it to a NAF position as long as the Complainant encumbers it.
Complainant received a notice, dated October 6, 2015, stating that "the Child Development Homes (CDH) Program will be transitioning to regional oversight effective 23 October 2015." Complainant's oversight duties were modified. The oversight duties for the CDH were reassigned to another employee, the Regional CDH Director. Complainant was assigned the duties of the Child Development Center (CDC) Director of the Northwest Annex CDC. Her pay and title remained the same.
By letter to the Agency dated October 14, 2015, Complainant alleged that the Agency was in breach of the settlement agreement paragraph 1, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency breached the Agreement when it moved oversight of the CDH from the installation level, to the regional level, as part of a management-led realignment.
In its November 13, 2015 FAD, the Agency concluded that it had fully complied with the Agreement. The Agency reasoned that it provided Complainant the required non-competitive management-directed reassignment to the position of Installation Child and Youth Program Director. The Agency stated that it "does not dispute that oversight of the CDH program was moved from the base level to the region level for business and programmatic reasons, e.g., efficiency, command and control." The Agency stated that "the Agreement's terms did not promise that the position would permanently have oversight of the CDH program, and it did not state that [Complainant] would have oversight of the CDH program permanently or in perpetuity." This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that "the agreement explicitly states that Complainant's position would include oversight over the Hampton Roads Child Development Homes program," and that "there is no reason why these duties cannot remain with the Complainant."
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 that the Agreement is valid and binding on both parties.
In the instant case, the Agreement did not state that there could be no changes to chain of command. The Agreement required the reassignment of Complainant to the position of Installation Child and Youth Program Director (GS-1701-12; Position No. NV52044). The Agency reassigned Complainant to that position. That position (to which she was assigned) had oversight over the Hampton Roads Child Development Homes program and she reported directly to the MWR Director of Naval Support Activity - Hampton Roads. Complainant remains at the same grade level and title and continues to encumber the position and have oversight responsibilities, but under a different title.
For all of these reasons, we do not find that Complainant has shown a breach of the terms of the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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
April 12, 2016
__________________
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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