U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosamaria F,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Health Resources and Services Administration),
Agency.
Appeal No. 0120162573
Agency No. HHS-HRSA-00148-2016
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated June 28, 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
Complainant worked as a Social Scientist, GS-0101-14, at the Agency’s Bureau of Health
Workforce in Rockville, Maryland. This office was located within the Health Resources and
Services Administration (HRSA). Believing that the Agency subjected her to unlawful
discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint
process on February 1, 2015. On April 4, 2016, Complainant and the Agency entered into a
settlement agreement to resolve the matter. The settlement agreement was signed by Complainant,
the National Center for Health Workforce Analysis (NCHWA) Director, and the Director of the
Office of Equal Opportunity, Civil Rights, and Diversity. It provided, in pertinent part, that:
(2b) Management will revise PMAP [performance evaluation] on team-building
element from a level 2 to a level 3, and the narrative will remain the same.
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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(2c) Management will provide projects to employee within a timely manner and
projected timeline for 2016 will be provided to the employee within the next 30
days.
(2d) Management will look into full-time Hoteling in other government buildings as a
possible option; however, there is no guarantee that management will obtain such
space outside of [Agency’s street address].
(2e) Management agrees to approve full-time telework as an option as long as employee
remains eligible according to the [Agency’s] telework policy.
(2f) Management will support the employee in the following areas:
(a) Support of an abstract prepared by the employee.
(b) Support employee’s career development endeavors – mentoring, program,
coaching, etc.
(c) Management will provide letter of recommendation if requested by
aforementioned programs.
(d) Management will consider employee’s suggestion for contacting the SharePoint
Administrator to add link to the SharePoint site for New Employee Orientation
Training within the next 60 days.
By letter to the Agency dated June 2, 2016, Complainant alleged that the Agency was in breach of
the clauses (2b) through 2f(b) of settlement agreement, and requested that the Agency specifically
implement its terms. In its June 28, 2016 FAD, the Agency concluded that Complainant had
failed to prove that it had breached 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).
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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 Engineering Service. Co., 730 F.2d 377,
381 (5th Cir. 1984).
As to Clause (2b), Complainant alleged that as of June 2, 2016, no revised copy of her PMAP had
been provided. In its response dated June 8, 2016, the Agency stated that the performance element
entitled, “teamwork / customer service” had been raised from level 2 to level 3 without the
narrative being changed. The NCHWA Director had informed Complainant of the change verbally
on April 5, 2016, and informed her that a hard copy would be made available for her if she chose.
The NCHWA Director’s action had been documented in an email dated April 5, 2016. We find
that the Agency had fully complied with Clause (2b).
Regarding Clause (2c), Complainant alleged that as of June 2, 2016, the Director had decided to
reserve the right to hold off on informing her of any new assignments beyond early August, and
that no further information on assignments had been provided to her. In its response dated June 8,
2016, the Agency responded that Complainant met with her Branch Chief, and the NCHWA
Director to discuss her assignments, and was given a timeline with deliverables at that meeting.
The NCHWA Director revised the due date of her assignments and provided her with a revised
timeline for deliverables. He also informed Complainant that he was not sure of the next evaluation
assignment and would get back to her in August of 2016 with additional assignments. The Agency
stated that it was actually ahead of schedule and would be able to provide Complainant with her
assignments in June 2016. According to the NCHWA Director, Complaint had agreed to this plan
and had no other questions. We find that the Agency has fully complied with Clause (2c).
With respect to Clause (2d), Complainant alleged that the Agency had provided contradictory
information regarding availability of hoteling facilities, and that the actions of the Human
Resources office, the Labor and Employee Relations Office and the NCHWA management team
had precluded discussion of hoteling considerations. In its response, the Agency stated that
HRSA’s Office of Administrative Management oversees space and building tasks, and that
Management spoke with two representatives from the Office of Administrative Management about
the availability of hoteling options and were told that none existed. This was sufficient for the
Agency to fulfill its obligation to inquire into the availability of hoteling options under Clause
(2d).
Concerning Clause (2e), Complainant alleged that Clause (2e) was inserted into the agreement by
the Agency despite her expressions of concern regarding restrictions on telework to which she
could be subject due to dependent care. The Agency asserted that this clause was part of the
settlement agreement and denied that it was added later. Moreover, Clause (2e) did not compel
Complainant to telework; it merely gave her the option to take full-time telework if she so desired
it and she satisfied the Agency’s eligibility requirements for telework. We therefore find no breach
of Clause (2e) on the part of the Agency.
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As to Clause (2fa), Complainant alleged that the Agency violated this clause when the NCHWA
Director and the HRSA Administrator decided to exclude her from co-authorship of manuscripts
regarding the Teaching Health Centers Graduate Medical Education evolving contract for which
she, Complainant, was the Contracting Officer Representative. She further alleged that she was
removed from this position after receiving a letter of reprimand on May 3, 2016, which precluded
her from receiving credit for written work products prepared in connection with the project. The
Agency responded that Complainant had not written or presented any abstracts to management nor
had she approached the management team about any ideas for a publication. The Agency further
stated that neither the HRSA Administrator nor the NCHWA Director excluded Complainant from
co-authorship on any papers pertaining to the project as a result of the reprimand. In addition, the
Agency noted that Complainant was not a significant contributor to the project, pointing out that
authorship required significant contributions. We can therefore find no violation of Clause (2fa)
attributable the Agency.
Regarding Clause (2fb), Complainant alleged that as of June 2, 2016, she had not been allowed to
discuss a personal development plan with her first-line supervisor, and that her access to the
Human Resources Office had been “interfered with” by the Labor and Employee Relations Office.
The Agency responded that two or three days after the mediation which produced the settlement
agreement, the NCHWA Director provided Complainant with options and information regarding
the mentor program within the HRSA. The Agency also denied that the Labor and Employee
Relations Office had, in any way, interfered with, impeded, or obstructed Complainant’s efforts to
obtain information from that office. The NCHWA Director noted that while a personal
development plan for Complainant was not made explicit in the settlement agreement, he would
be happy to assist Complainant in the development of such a plan. We find the Agency to be in
compliance with Clause (2fb).
With respect to Clause (2fc), Complainant stated that she was unable to request a letter of
recommendation because no appropriate program had been identified. The Agency responded that
Complainant had not made a request for a letter of recommendation and that the NCHWA Director
had expressed his willingness to do provide such a letter if she requested one. Complainant has
not presented any emails, memoranda, or other documents in which she requested a
recommendation. We therefore find that the Agency did not violate Clause (2fc).
Concerning Clause (2fd), Complainant alleged that as of June 2, 2016, no union contact
information or other relevant information had been posted on the Agency’s new employee website
per her suggestion. The Agency responded that the NCHWA’s management had considered
Complainant’s suggestion regarding the New Employee Orientation website on SharePoint and
that as of June 8, 2016, changes to that website had been completed. We therefore find no violation
of Clause (2fd).
To summarize, we find that Complainant has not presented any documents or statements beyond
her own assertions that the Agency had materially breached any of the above-referenced terms of
the settlement agreement entered into by the parties on April 4, 2016.
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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision that it had not breached the settlement agreement into which it had entered with
Complainant on April 4, 2016.
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.
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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
August 24, 2018
Date
