U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carmina E.,1 Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 0120141495 Agency No. NCN-08-JSC-A027 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated March 14, 2014, finding that it was in compliance with the terms of an October 22, 2009 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 October 22, 2009, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The October 22, 2009 settlement agreement provided, in pertinent part, that the Agency would undertake the following obligations: 2.b. Reassign the Complainant with duties as Special Assistant to the Chief Scientist, Space Life Sciences Directorate; Space Life Sciences Academy.2 By letter to the Agency dated January 25, 2014, Complainant alleged breach. Specifically, Complainant alleged that the Agency downgraded the position of the Chief Scientist, and that this downgrade represented an effort to thwart her efforts towards career advancement. Complainant further cited ten actions that the Agency has undertaken to prevent her from advancing in her career as follows: a. placing her in the Special Assistant position that the Agency knew had no career advancement (in 2009); b. informing her that there was no career advancement in her role (2010); c. refusing to permit her attend Directorate Strategy Execution and Implementation meetings (dates unknown); d. having open discussions about her discrimination complaint (date unknown); e. defaming her character by referring to her as a "marginal employee;" f. denied her competitive promotion (2011); g. denied her promotion through accretion of duties (2012); h. downgrading of her 2011 performance evaluation from "Accomplished" to "Fully Successful;" i. elimination of the HAS Chief Scientist position (January 2014); and j. elimination of contractor support (December 2013). In its March 14, 2014 final decision, the Agency indicated that most of Complainant's breach claims were filed beyond the 30-day regulatory time limit. Additionally, the Agency stated that after the signing of the settlement agreement, Complainant was reassigned to work with the Chief Scientist. The Agency found that, at that time, the Chief Scientist expected that the Space Life Science Academy would be a separate entity fully funded by universities but this expectation did not occur. Subsequently, the Chief Scientist retired and the responsibilities of the Chief Scientist were assumed by another employee, a former Chief Nutritionist (second Chief Scientist). The Agency noted that during the second Chief Scientist's tenure, the academy was exclusively funded by in-house resources with no additional funding. The second Chief Scientist retired in January 2014. The Agency noted that a named Agency official assumed the academy-related duties of the second Chief Scientist's position (third Chief Scientist). The Agency noted at that time the duties of the Chief Scientist, other than those managing the academy, were reassigned to the Langley Research Center and internally within the Johnson Space Center. The Agency found that, since the second Chief Scientist's retirement, the third Chief Scientist has the responsibility of managing the academy and is Complainant's current supervisor. The Agency determined that none of the above mentioned actions changed Complainant's duties and she remains in the same position description and serving at the same GS-14 grade level. Further, the Agency stated that there is nothing in the settlement agreement that makes reference to the permanency of the position of Chief Scientist or any other subsequent promotions/career advancements of which Complainant believed she had been deprived. Moreover, the Agency determined that it was in compliance of provision 2.b. of the instant settlement agreement. Complainant, on appeal, acknowledges that she was reassigned with duties as a Special Assistant to the Chief Scientist "but on January 16, 2014, I learned that Agency/Directorate eliminated the position of the Chief Scientist/Senior Scientist as Lead of the Space Life Sciences Academy (aka Human Systems Academy (HSA)) by downgrading the position to a GS14. As a result, I am no longer a Special Assistant to the Chief Scientist. This modification alters my role and responsibilities, I was not consulted, I do not agree with the changes, and I feel this was done in retaliation for previous EEO activity...I negotiated the Settlement Agreement in good faith only to later learn that the Agency was trying to 'bury me in a dead-end job.' They want me to do work with no opportunity for advancement and with the hopes that I would retire [emphasis in its original]." The instant appeal followed. 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 provision 2.b. of the settlement agreement. Provision 2.b. of the agreement provides for an affirmative Agency obligation to resign Complainant with duties as Special Assistant to the Chief Scientist, Space Life Sciences Directorate and Space Life Sciences Academy. We note that Complainant acknowledged that she was reassigned to the position of Special Assistant to the Chief Scientist following the signing of the instant settlement agreement. Complainant emphasizes that the instant agreement provided that her reassignment was for an indefinite period of time. However, the Commission has held that if a settlement agreement does not include specific duration terms for the employment relationship which could have been agreed upon, it would be improper to interpret the reasonable intentions of the parties as binding the agency to the terms thereof forever. See Parker v. Department of Defense, EEOC Request No. 05910575 (August 30, 1991). The Commission finds that the reassignment for approximately six years satisfies provision 2.b. of the settlement agreement. Accordingly, the Agency's determination that it was not in breach of provision 2.b. of the October 22, 2009 settlement agreement is AFFIRMED. Because of our disposition of this case, we find it unnecessary to address the issue of the timeliness of the breach claims. 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 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 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 February 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. 2 The settlement agreement also provides for the Agency to promote Complainant to a GS-14 level, step 6; pay Complainant $4,610.00 in compensatory damages and $11,390.00 in attorney's fees; and increase her step from GS-14, step 6 to GS-14, step 7 no later than the end of June 2010 provided that her performance evaluation is "fully successful," "accomplished" or "distinguished." These provisions are not at issue in the instant appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141495 5 0120141495 6 0120141495