[Redacted], Joette R,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 30, 2020

Appeal No. 2020001015 (E.E.O.C. Apr. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joette R,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020001015 Agency No. ARREDSTON19MAY01631 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated October 11, 2019, finding that it was in compliance with the terms of a June 20, 2019 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On June 20, 2019, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued in the EEO complaint process. The June 20, 2019 settlement agreement contained, in pertinent part, the following provision: Provision 4a: Effective June 30, 2019, rehire [Complainant] on a Temporary appointment not to exceed One Year to a GS-0905-11 Attorney-Adviser (Contract) position within the Army Material Command Legal Center - Redstone Arsenal (AMC Legal Center-RSA), with duties as described in the attached position description number BK101748, at a duty station located on Redstone Arsenal, Alabama. 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. 2020001015 2 During relevant period, Complainant worked as an Attorney Advisor at the Agency’s Aviation and Missile Command, Office of the Staff Judge Advocate facility in Redstone Arsenal, Alabama. By letter to the Agency dated August 30, 2019, Complainant alleged breach. Specifically, Complainant alleged that the Agency (1) substituted the agreed upon position description - BK101748 (original PD) with another position description - BK526938 (substitute PD); (2) failed to conduct a thorough investigation of her claims which Complainant claims was a condition precedent to the settlement agreement; (3) failed to conduct an inquiry into the actions of the Chief Counsel who served as the settlement authority; and (4) failed to include in the settlement agreement language required by the Whistleblower Protection Enhancement Act of 2012 (WPEA). In its October 3, 2019 final decision, the Agency found no breach. The Agency explained that regarding provision 4a, the settlement agreement did not specify that it would assign Complainant to the original PD. Rather, the Agency stated that the purpose and intent of providing Complainant with a copy of the original PD was to describe the duties which would be contained in a position description to which Complainant would be assigned. The Agency further stated that, contrary to Complainant’s assertions, the duties in the original position and the duties in the substitute position are identical. The Agency also disputed Complainant’s claim that the original PD only required supervisory approval for promotion to GS 12 and that the substitute PD included an additional requirement that she spend 25% of her time on a temporary duty travel (“TDY”). The Agency explained that the original PD specifies that promotions are based on completion of satisfactory performance, time in grade, and experience requirements. The Agency also disagreed with Complainant’s claim regarding the TDY assignment and explained that the Agency had chosen to dispense with this requirement as a condition of employment. The Agency further denied Complainant’s claim that it had verbally agreed to investigate her allegations as a condition precedent to the settlement agreement. The Agency averred that the this alleged verbal agreement was not included in the written agreement. With respect to the Chief Counsel, the Agency explained that the Chief Counsel denied being contacted about an Inspector General’s Office inquiry into his actions based on Complainant’s allegations prior to the execution of the settlement agreement, and therefore, the Chief Counsel had no information to disclose to Complainant during settlement agreement discussions. Finally, the Agency denied that it was required by the WPEA to include a confidentiality clause in the settlement agreement. The Agency reasoned that that it was not required to include a confidentially clause in the instant settlement agreement because the settlement agreement only placed restrictions on the disclosure of the terms and conditions of the settlement agreement. The instant appeal followed. On appeal, Complainant, through counsel, primarily argues that the Agency breached the settlement agreement when it substituted the original PD with another PD. 2020001015 3 Complainant also indicates that that she initiated EEO Counselor contact on May 3, 2019, alleging discrimination based on sex by a supervisor, and she was given a letter of termination on May 21, 2019. In response to Complainant’s appeal, the Agency filed a brief in opposition and addressed Complainant’s arguments on appeal. Subsequently, Complainant, through counsel, submitted a motion for leave to submit a rely brief to the Agency’s opposition. Specifically, Complainant argued, in pertinent part, that the Agency raised in its opposition allegations not previously discussed or acknowledged by either party which included, in pertinent part, a discussion of the circumstances that led to Complainant’s termination. In response, the Agency submitted a brief in opposition to Complainant’s motion and argues that it discussed documentation of Complainant’s unacceptable performance during Complainant’s probationary period to provide context for Complainant’s assertion, in her appeal, that she was terminated from the Agency 17 days after she initialed EEO Counselor contact. Nevertheless, the Agency clarifies that Complainant’s termination is irrelevant and the only matter at issue is whether the Agency breached the written terms of the settlement agreement. ANALYSIS Preliminary Matter - Claim at Issue As an initial matter in light of Complainant’s motion and the agency’s brief in opposition to Complainant’s motion, we clarify that the only matter at issue is whether the Agency breached the terms of the settlement agreement. Therefore, we need not address the circumstances surrounding Complainant’s termination from the Agency. 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). Our review of the record indicates that Complainant has not demonstrated that the Agency breached the settlement agreement. 2020001015 4 Section 4a of the settlement agreement states that Complainant would be placed in an Attorney- Advisor position and there is no indication that Complainant would specifically be assigned to the position referenced in PD BK101748. The settlement agreement mentions PD BK101748 to refer to the duties Complainant would perform in an Attorney-Advisor position. Because there is no dispute that the Agency attached a different PD from the PD referenced in the settlement agreement, Complainant’s allegation of breach hinges on whether the duties described in the original PD differ from the duties described in the substitute PD. Our review indicates that both PDs describe the duties of an Attorney-Advisor and the major duties for both PDs are identical but for one paragraph. The original PD includes the following paragraph which is omitted from the substitute PD: This is a developmental position designed to facilitate profession to Attorney Advisor (Contract), GS-905-12 with full potential of GS-05-13. Advancement is not automatic, but is predicated on satisfactory performance of assigned duties, necessary time in grade, and experience requirements. Upon recommendation of supervisor, the incumbent will be evaluated for non-competitive promotion to the GS-12 level. We distinguish this paragraph from the other remaining paragraphs outlining the same major duties listed in both PDs and conclude that the major duties in both PDs are identical. Additionally, this paragraph reflects that the original PD, contrary to Complainant’s assertion, specifies that promotion to the GS 13 level is not based on supervisory discretion alone. Rather, promotion is contingent upon the performance, time-in grade, and experience requirements being met. Finally, we do not find that the substitute PD requires that Complainant spend 25% of her time on a TDY. The alleged requirement is found under an administrative section titled, Position Cursory Review section, and states, “. . . at a minimum include Temporary Duty Travel (TDY) 25% or more (may be less if requested by management).” However, we note that a 25% TDY requirement is not listed in either PD as a condition of employment. Therefore, we do not find that the substitute PD contains an additional requirement omitted from the original PD. For these reasons, we find that there are no significant differences in the duties specified in either the original PD or the substitute PD to substantiate Complainant’s settlement breach claim. The Agency’s final decision finding no breach of the June 20, 2019 settlement agreement is AFFIRMED. 2020001015 5 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 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. 2020001015 6 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 30, 2020 Date