U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hilda H.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180790 Agency No. 2003-0005-2013100349 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated November 20, 2017, finding that it was in compliance with the terms of an April 23, 2014 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. The Commission accepts the appeal. BACKGROUND During the relevant time, Complainant worked as the Deputy Facility Chief Information Officer at the Jack C. Montgomery Veterans Administration Medical Center in Muskogee, Oklahoma. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 23, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2) The Agency agrees to place [Complainant] in the position of IT Project Manager/IT Specialist (Project Management), GS-13, Step 1, UPI #OIT02547, effective May 4, 2014. The location of the position is virtual, with teleworking permitted. By letter to the Agency dated September 28, 2017, Complainant alleged breach. Specifically, Complainant alleged that the Agency violated the agreement when, on August 24, 2017, she received an e-mail from her Supervisor stating that Complainant was now an "Implementation Manager" and not an "IT Project Manager." In its November 20, 2017 decision, the Agency found no breach. The Agency explained that in 2016, Complainant was realigned to the Enterprise Program Management Office (EPMO). A second realignment occurred in July 2017, as part of IT Operations and Services (ITOPS) realignment. According to the Agency, all Program Managers2 are focused on IT implementation and installations and are "functionally" referred to as "Implementation Managers." The Agency stated that realignments were not planned at the time the agreement was executed. Further, these Agency-wide changes did not have an impact upon Complainant's salary or duty location. The Agency reasoned that the agreement did not guarantee Complainant employment in a particular job forever. Complainant filed the instant appeal, but did not submit any supporting brief or arguments. 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). 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). As noted above, effective May 2014, Complainant was placed in the IT Project Manager position. Complainant alleges that the Agency breached the agreement in August 2017, more than three years later, when her supervisor informed her she was now an Implementation Manager. The Commission has held that where an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position forever. See Papac v. Dep't of Veterans Affairs. EEOC Request No. 05910808 (Dec. 12, 1991); Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 30, 1991); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997) (Agency agreed in a settlement to promote the complainant to a specific position, and did so. She was reassigned almost four years later because of a reorganization. Applying Papac and Parker the Commission found no breach). Therefore, we find that the Agency did not breach the agreement when Complainant's job title/job was modified pursuant to the 2017 realignment. CONCLUSION Accordingly, the Agency's decision finding no breach was proper and is AFFIRMED. 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. 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 March 15, 2018 __________________ 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 states there are approximately sixty Program Managers. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180790 4 0120180790