U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verdell A.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120152922 Agency No. HSICE024362015 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated July 29, 2015, finding that it was in compliance with the terms of the settlement agreement into which the parties entered on February 17, 2015. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Intelligence Research Specialist (GS-13) at the Agency's New York Office of the Special Agent in Charge ("SAC") Counter Terrorism-Criminal Exploitation Unit in New York City. On December 10, 2014, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process; alleging that her first and second line supervisors ("S1" and "S2") made offensive, inappropriate comments relating to her age, sex, and disability during a meeting concerning her performance appraisal. Complainant further alleged that S2 subjected her to ongoing harassment over several years, but it had intensified since the meeting. As relief, Complainant requested a lateral transfer to another office outside of S1 and S2's chain of command. On February 17, 2015, Complainant and the Agency engaged in mediation which culminated into a settlement agreement ("the Agreement") to resolve the matter. In relevant part, the Agreement provided that: The agency agrees to accommodate the request of Complainant to receive a lateral reassignment, with the same occupational series and grade, to an investigative group within the Agency Investigation's New York Office of the SAC. The investigative group to which Complainant will be transferred is to be determined based on the needs of the Office of the Special Agent in Charge and may be located at one of two agreed upon New York locations. Any such determination is at management's sole discretion and is not subject to challenge by Complainant. The lateral reassignment will be effective March 12, 2015. Complainant may be reassigned to another investigative group within the Investigation's New York Office in the future based on the needs of the Office of the Special Agent in Charge. Effective March 15, 2015, Complainant was reassigned from the SAC Intelligence Program to the SAC Counter Terrorism-Criminal Exploitation Unit. The position was outside S1 and S2's chain of command and the terms of the lateral transfer fully complied with the Agreement. On May 21, 2015, the Agency issued a directive concerning an "Intelligence Support Plan" to overhaul the organizational structure Agency's New York offices and make "significant changes during the remainder of FY 2015... [including] how the intelligence workflow and support would be managed." Under the plan, each office would have a Chief Intel Officer ("CIO") with "second-line authority over all Intel resources;" including Intelligence Research Specialists ("IRS"), such as Complainant. The CIO, as well as Intelligence Support Team Leaders ("ISTL") would oversee the intelligence workload for each office. According to the directive, the CIO in Complainant's office was slated to be S2, and the ISTL would be S1. Per the "Intelligence Support Plan" the ISTL and CIO would be copied on Complainant's intelligence support assignments and regularly meet with her first line supervisor. Complainant, as an IRS, would be required to submit monthly reports of her work activity to her first line supervisor the ISTL and CIO for review. The IRSs would also be subject to new Performance Work Plans ("PWP"), effective FY 2016. Under the plan, the CIO would provide final approval for all IRS individual performance requirements and goals. On June 19, 2015, Complainant contacted the Agency via email, alleging that the directive's announcement that S1 and S2 would fill the positions of CIO and ISTL in the same office where she had been laterally transferred breached the Agreement because it would undermine the purpose of the lateral transfer provision, as discussed in negotiation. On July 29, 2015, the Agency issued a final decision concluding that under 29 C.F.R. § 1614.504(a), transferring S1 and S2 to supervisory positions over Complainant would not constitute a breach because nothing in the Agreement specified who could supervise Complainant in her new position. Alternately, the Agency argued that it substantially complied with the Agreement because it met all of its written obligations.2 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 intent of the parties as expressed in the contract, not some unexpressed intention controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990) Where an individual bargains for a position, without any specific terms as to the length of service, the Commission has held that it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position forever. Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). In the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 29, 1991); Gomez v. Dep't of the Treasury, EEOC Request No. 05930921 (Feb. 10, 1994). In addition, the Commission has found that bad faith in negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Security Admin., EEOC Request No. 05950169 (June 12, 1997); Suter v. United States Postal Serv., EEOC Appeal No. 0120093523 (October 19, 2010) (finding the Agency negotiated in bad faith when, per a settlement agreement, it placed Complainant into a specific building management position, after failing to disclose in negotiations that the building where the position was located was scheduled to close in six months); Complainant v. Nat'l Endowment for the Arts, EEOC Appeal No. 0120133264 (Feb. 4, 2014) (finding the Agency negotiated in bad faith when Complainant's manager, a party to the negotiations, made promises of specific performance even though he likely knew that he would not have to fulfill them because Complainant would be terminated two weeks later, purportedly for unsuccessful work performance). Complainant worked in her new position for approximately two and a half months before learning that S1 and S2 would be transferred the same office to supervisory roles. The record supports that the parties to the negotiation were aware that Complainant's only purpose in entering the Agreement was to leave the chain of command of S1 and S2. Based on the reasonable intentions of the parties, we do not interpret two and a half months to be a reasonable amount of time to satisfy the Agreement. Moreover, given the timing and the extent of the organizational changes in the directive, the Agency likely knew or should have known at the time of the negotiation that the possibility existed for S1 and S2 to be transferred to Complainant's new office. Thus, the Agency is in breach because it acted in bad faith during settlement negotiations when it failed to disclose the upcoming organizational changes. We find that the parties' intent in entering the Agreement was for Complainant not to be supervised by S1 and S2. As Complainant requested specific performance, in order to comply with the Agreement, the Agency must provide Complainant with the option of lateral reassignment per our Order below when (and if) S1 and S2 assume supervisory positions within the same office as Complainant. CONCLUSION Accordingly, we REVERSE the Agency's finding of compliance. We REMAND this matter to the Agency for action in accordance with the Order below. ORDER The Agency is ordered to take the following remedial action: 1. The Agency shall comply with the terms of the Agreement, as interpreted in this decision, within thirty (30) calendar days of the date this decision becomes final. 2. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall gather relevant evidence to document that it has complied with the Agreement by ensuring Complainant is provided with the option for lateral reassignment with the same occupational series and grade to either her original location at the time the parties entered into the Agreement, or whichever of the two agreed upon locations in the Agreement will not require her to work under the supervision of S1 and S2. Once the documentation has been gathered, the Agency shall issue Complainant another final decision on its compliance efforts with appeal rights to this Commission. 3. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall submit a report of compliance to this Commission, as provided in the statement entitled "Implementation of the Commission's Decision" below. The report shall include (1) supporting documentation verifying that the corrective action has been implemented, (2) a copy of the transmittal letter including appeal rights to Complainant that accompanied the supporting documentation and final agency decision and (3) a copy of the Agency's final decision. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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. Carlton M. Hadden, Director Office of Federal Operations February 23, 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 Agency also argues that Complainant did not establish, as of the date of its decision, that S1 and S2 had been placed in positions of authority over her new position. We find the May 21, 2015 Agency directive provided sufficient information for purposes of this decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152922 6 0120152922