U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aldo B.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 0120141053 Agency No. HHS-FDANCTR-098-10-F DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated December 11, 2013, finding that it was in compliance with the terms of a November 8, 2011 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Management Analyst at the Agency's Office of Executive Programs and Services, National Center for Toxicological Research (NCTR) facility in Jefferson, Arkansas. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 8, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The November 8, 2011 settlement agreement provided, in pertinent part, that: 5. Change of Duty Station The Agency will allow Complainant to change his official duty station [from Arkansas] to the FDA White Oak Campus in White Oak, Maryland no later than January 17, 2012 with the following conditions: a. Complainant will remain in the same position description as a GS-13 Management Analyst providing human resources services in NCTR; b. Complainant will remain under the supervision of the Associate Director, Executive Programs and Services, National Center for Toxicological Research "NCTR;" c. Complainant's Alternative Duty Station "ADS" in the Flexiplace Work Arrangements Program will be changed from Wednesday to Thursday from his residence in the local community area for the FDA White Oak Campus with no additional ADS days resulting from this Agreement; d. Complainant will be allowed the flexibility to physically work no more than two days per month as needed at the Human Resources servicing center in Bethesda, Maryland. Any travel expense associated with this provision is the responsibility of Complainant; and e. Complainant will receive a lump sum of $10,000 in relocation costs to relocate to the local commuting area of the FDA White Oak Campus. The Agency will begin processing the $10,000 payment within 14 days of the last signatory of this Agreement. By letter to the Agency dated August 31, 2012, Complainant alleged breach of the November 8, 2011 settlement agreement. In an undated letter, the Agency informed Complainant that "Management provided a response" on December 11, 2012 and Complainant replied with additional documentation, also on December 11, 2012. The Agency then reviewed the case file and determined, on December 26, 2012, that there was no breach. Complainant appealed the determination. On appeal, the Commission vacated and remanded the Agency's decision after finding insufficient evidence to make a determination whether a breach of provisions 5a - 5e had occurred. On remand, the Commission ordered the Agency to supplement the record with documentation, such as affidavits from responsible management officials. Seaward v. Department of Health and Human Services, EEOC Appeal No. 0120131245 (June 20, 2013). The Agency issued a new final decision on December 11, 2013, which is the subject of the instant appeal. Therein, the Agency found that it did not breach provisions 5a - 5e of the November 8, 2011 settlement agreement. The instant appeal followed. Complainant, argues that the Agency again erred finding no breach of provisions 5a - 5d concerning his November 2012 directed reassignment from NCTR to the Office of Human Resources (OHR) due to an Agency reorganization which affected his placement in the White Oak facility.2 Specifically, Complainant states that other similarly situated employees were not subjected to involuntary reassignments which "supports the complainant's allegation of disparate treatment." Complainant states that a named female employee (Employee 1) performed the same type of HR liaison duties "performed by [another female employee] and the Complainant. These duties included compiling packages for Managers containing developed PDs, job analysis, coordinating with the HR specialist, performing a pre-consult, and creating staffing models. To date, [Employee 1] is still performing these duties within NCTR and has not been reassigned to OHR." ANALYSIS AND FINDINGS 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, we find that the Agency complied with the terms of provisions 5a and 5d of the settlement agreement. The supplemented record contains an affidavit from Complainant's former supervisor. Therein, the former supervisor stated that he was Complainant's supervisor until his reassignment in November 2012. The former supervisor stated that the Agency complied with the terms of the settlement agreement. Specifically, the former supervisor stated, "[w]hen the Complainant's duty station changed from Jefferson, Arkansas to DC, he remained on his same position description, continued to perform under my supervision, and worked under his new ADS schedule." The former supervisor stated that due to the Agency's reorganization of Human Resources (HR), Complainant was reassigned to the Office of Human Resources (OHR) in November 2012 "therefore necessitating a new position description. The agreement made no commitment by the Agency that the Complainant's position description was to remain permanent or last for a specific length of time. The complainant was given the option to be reassigned to another area within the OHR but indicated his preference for reassignment to the System Analytics and Information Staff." The former supervisor stated "both the Agency and the Complainant had knowledge of a future HR reorganization; however, neither party knew when it would be implemented." The former supervisor stated that following the reorganization "there are several limited HR functions that remain at the Center. These are primarily administrative, lower graded work functions, to include: Entering request for personal or recruitment actions; data entry, and filing clerical activities, and scanning and emailing documents for employees under hired under the Title 42 and Title 5 hiring authorities, to the Office of Human Resources. [Employee 1] performs these lower-level administrative duties along with other duties she performs outside of HR. The higher graded work: providing consultative HR advisory services, tracking and providing reports to management regarding the status of HR actions, onboarding new employees, providing authoritative guidance on recruitment strategies, and other functions are now performed by the Office of Human Resources." With respect to Complainant's allegation that he was told he had to be reassigned because his work would no longer be handled at NCTR, the former supervisor stated "that's partially accurate. The Agency reorganization of HR transitioned the grade controlling duties the Complainant was performing to the HR organization. OHR has established several onsite positions that will perform many of those grade controlling HR advisory services. Some of these positions are currently being recruited for and have not yet been filled." The Human Resources Specialist (Specialist) stated that during the relevant period, she and Complainant and worked under the former supervisor. The Specialist stated at that time Complainant "served as a Senior Management Analyst as a HR liaison duties for NCTR. He served advising managers on what type of recruitment packages would aide them in Title 5 or Title 42 and Senior Bio-medical Research (SBRS). He would also help create job analysis, entering job requisitions into the personnel system, etc." Further, the Specialist stated that Complainant's HR liaison duties have not been transitioned over to OHR. The Specialist stated, "I know this because I serve now as a HR Specialist and basically the work [Complainant] did on that side of the house is still there and is being performed by [former supervisor] and [Employee 1]. The reason why it's still there is because that program (NCTR) works. It [does] not work that is handled on the side of OHR. The preparation of recruitment packages to OHR will always be performed on that side." The pertinent provisions 5a - 5 d of the settlement agreement does not provide Complainant with an indefinite guarantee that he would only be a Management Analyst with HR liaison duties. Instead, the subject agreement provides for change of Complainant's official duty station from the Jefferson, Arkansas facility to the Washington D.C. as a Management Analyst under specific conditions. The complainant acknowledges that his official duty station was changed to the Washington D.C. on January 15, 2012. Complainant remained in Management Analyst his position at least until November 5, 2012, at which time he was reassigned to OHR as a HR Specialist (Information Systems), GS-0201-13, as a result of the Agency's reorganization. Where an employee bargains for a specific position, but fails to request terms as to length of service in the position, the agency is not obligated to retain the employee in that position indefinitely. See e.g., Donelan v. United States Postal Service, EEOC Appeal No. 01956930 (March 4, 1997) (citing Parker v. Department of Defense, EEOC Request No. 05910576 (August 29, 1991)). In the instant case, the Agency agreed to allow Complainant to change his official duty station from Arkansas to the White Oak, Maryland campus with the following conditions: that he would remain in the same Management Analyst position, GS-13, providing human resources services to NCTR under the supervision of the Associate Director; change his ADS from Wednesday to Thursday; and be allowed the flexibility to physically work no more than two days per months as needed at the HR servicing center in Bethesda, Maryland. The record establishes that these provisions were accomplished. However, approximately a year later, in November 2012, Complainant was reassigned from NCTR to the OHR as a HR Specialist due to a general Agency's reorganization. The record supports the Agency assertion that the details and timing of this reorganization were not anticipated at the time of the execution of the subject agreement. The Agency's final decision finding no breach of provisions 5a - 5d of the subject settlement agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 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 9-18 (November 9, 1999). 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations June 22 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. 2 Complainant makes no reference to breach of provision 5e, though providing extensive argumentation regarding provisions 5a - 5d. Given these specific circumstances, we determine that Complainant is no longer contesting breach of provision 5e, and we will not further address this provision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141053 2 0120141053