[Redacted], Esmeralda L., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.Download PDFEqual Employment Opportunity CommissionSep 30, 2022Appeal No. 2022003689 (E.E.O.C. Sep. 30, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Esmeralda L.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 2022003689 Agency No. DOI-FWS-12-0566 Hearing No. 570-2014-00226X DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated May 27, 2022, finding that it was in compliance with the terms of a June 23, 2015 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND Complainant worked for the Agency as a Wildlife Inspector, GS-11, at the Agency’s U.S. Fish and Wildlife Service, Office of Law Enforcement in El Paso, Texas. On June 23, 2015, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued in the EEO complaint process.2 The June 23, 2015 settlement agreement contained, in pertinent part, the following provision: 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. 2 Complainant had elected a hearing before an EEOC Administrative Judge. However, the AJ dismissed Complainant’s hearing request once Complainant and the Agency reached a settlement agreement. 2022003689 2 Provision 8. DOI/FWS to Direct Reassignment of [Complainant]. No later than thirty (30) calendar days following the effective date of this Settlement Agreement, the DOI/FWS shall direct [Complainant’s] permanent reassignment from her present position as a FWS Wildlife Inspector, GS-1801-11, Office of Law Enforcement, Southwest Region, duty-station in El Paso, Texas, to the position of FWS Wildlife Inspector, GS-1801-11, Office of Law Enforcement, Southwest Region, duty-station at the Tornillo, Texas Port of Entry. The DOI/FWS shall not pay any relocation costs associated with the directed reassignment of [Complainant], who agrees to accept the directed, permanent reassignment, which shall continue for a reasonable period, but no less than three years. The DOI/FWS shall not require [Complainant] to serve any probationary period in the position of FWS Wildlife Inspector, GS-1801-11, Office of Law Enforcement, Southwest Region, duty-station at the Tornillo, Texas Port of Entry. Nothing in this Settlement Agreement shall be construed to permit the DOI/FWS to reject or ignore provisions and terms successfully negotiated as part of a collective bargaining agreement, specifically Article 40, Section 1(a)-(c), and pertinent to union members’ workspace and equipment. Pursuant to the terms of the June 23, 2015 settlement agreement, Complainant was reassigned to the Tornillo, Texas office where she remained until the Reasonable Accommodation Coordinator (RAC) informed her, via letter, on October 9, 2018, that she would be reassigned to the El Paso, Texas office, effective October 28, 2018. The October 9, 2018 letter stated, in pertinent part, Per the settlement agreement dated June 23, 2015, you were relocated to the Marcelino Port of Entry (POE), Tornillo, Texas, for no more than three years.3 During this time frame, expectations of commercial vehicles being routed to the Marcelino POE did not materialize from the Country of Mexico into the United States. Through ongoing evaluations of inspection statistics recorded at the POE in Tornillo, Texas, USFWS/OLE management has determined there is no longer an operational need to staff the Marcelino POE. Since there is no need to staff the Marcelino POE, you are being transferred back to the El Paso, Texas, OLE inspection team effective October 28, 2018. On November 9, 2018, by letter, Complainant, through counsel, alleged breach of the June 23, 2015 settlement agreement. Specifically, Complainant asserted that the Agency violated section 8 of the settlement agreement when she received the RAC’s notification on October 18, 2018, that she would be reassigned to the El Paso office. Complainant reasoned that the terms of the June 2015 settlement agreement specified that her reassignment to the Tornillo office was permanent. 3 We note that the settlement agreement actually stated, “no less than three years.” 2022003689 3 Complainant further reasoned that her reassignment in the Tornillo office was for a “reasonable period, but no less than three years,” and this specific language in the settlement agreement did not mean that her reassignment would end in three years as the RAC indicated in the October 9, 2018 letter. Additionally, Complainant asserted that her reassignment to the Tornillo office was not based on operational needs, and therefore, could not be removed due to operational needs. Finally, Complainant alleged that the Agency retaliated against her when she received the October 9, 2018 notice. Complainant explained that she received the notice about her removal from the Tornillo office around the same time that Complainant was communicating with the RAC regarding her disability from a work-related injury which required her to take medical leave for the calendar year. Complainant indicated that while she was on medical leave, management requested that she return to the office and perform work outside of her medical restrictions. Complainant further noted that her reassignment to the El Paso office would result in her being supervised by the same management official who harassment and discriminated against her which was the basis of Complainant’s underlying EEO complaint which was settled through the June 23, 2015 settlement agreement. On June 17, 2019, the Agency’s Departmental Office of Civil Rights (OCR) issued a determination finding that the Agency had breached the terms of the June 23, 2015 settlement agreement when it decided to return Complainant to the El Paso office and awarded Complainant attorney’s fees. However, on August 1, 2019, the OCR issued another decision rescinding the June 17, 2019 decision finding breach and vacated its award of attorney’s fees. In the August 1, 2019 decision, the OCR indicated it rescinded the prior decision because: (1) the Deputy Assistant Director (DAD) did not respond to the notification of non-compliance; and (2) the OCR did not receive a statement from the RAC. The OCR further noted that review of its records revealed that neither the DAD nor the RAC had received the notice of non-compliance. Additionally, the OCR explained that it lacked the authority to issue attorney’s fees in a breach of settlement claims. Subsequently, the OCR issued a notice of non-compliance to the DAD and the RAC with the opportunity to submit a response. The RAC did not respond. On August 12, 2019, the DAD responded and explained that a 2017 study on the OLE Wildlife Inspection Program indicated that there was no longer an operational need for staff at the Tornillo location and budgetary concerns rendered the Tornillo location a waste of government resources. As a result, the DAD explained that Complainant was notified of her reassignment to the El Paso office on October 9, 2018. However, the DAD clarified that Complainant had not yet been reassigned as she currently worked at the Tornillo office. On May 27, 2022, the OCR issued a new final decision finding no breach of the June 23, 2015 settlement agreement. The OCR explained that section 8 of the settlement agreement dictated that Complainant was to receive a “permeant reassignment for a reasonable period, but no less than three years.” The OCR further explained that “permanent” referred to Complainant’s tenure status and not the duration of her appointment. The OCR reasoned that the language stating “no less than three years” referred to the duration of Complainant’s reassignment, which in this context, was not an indefinite reassignment. 2022003689 4 The instant appeal followed. On appeal, Complainant, through counsel, argues in pertinent part that the DAD’s August 12, 2018 response was never submitted to Complainant. Consequently, Complainant argues that because she did not receive this August 12, 2018 response, she was not afforded the opportunity to respond and that, therefore, the OCR’s May 27, 2020 decision should be rescinded. Complainant reasons that the OCR’s original June 17, 2019 decision was rescinded under similar circumstances when the OCR determined that the DAD and the RAC had not received a copy of Complainant’s notice of non-compliance. Complainant also reiterates previous arguments that the RAC’s issuance of the October 2018 reassignment notification was retaliatory and related to Complainant’s need to take a medical absence due to a work-related injury. Furthermore, Complainant asserts that staffing needs at Tornillo have changed and greater personnel will be needed. 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). In the instant case, our review reflects that the OCR properly determined that the Agency did not breach section 8 of the settlement agreement when it notified Complainant that she would be reassigned back to the El Paso office. Here, the subject agreement does not provide Complainant with an indefinite guarantee that she would remain in the Tornillo office. The settlement agreement specifically states that Complainant’s reassignment to the Tornillo office would continue for “no less than three years.” Consequently, the duration of Complainant’s reassignment was only guaranteed for no less than three years at the Tornillo office. The record indicates that the RAC did not inform her of her reassignment before this three-year period, and therefore, did not violate the terms of the settlement agreement. Therefore, we agree with the OCR’s finding that the “permanent reassignment” language included in the settlement agreement referred to Complainant’s employment status, not the duration of her reassignment. 2022003689 5 We further note Complainant has alleged that that the Agency’s articulated reasons (i.e. operational needs) for issuing the October 2018 reassignment notice was pretext for discrimination and unlawful retaliation for Complainant’s request for a reasonable accommodation of a medical leave of absence related to a work-related injury. However, we this claim is outside the scope of the settlement agreement claim. If Complainant seeks to pursue this matter, then she should raise this issue before an EEO counselor and file a new complaint. CONCLUSION The Agency’s final decision finding no breach of the June 23, 2015 settlement agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2022003689 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 September 30, 2022 Date Copy with citationCopy as parenthetical citation