Harold M.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120182735 (E.E.O.C. Nov. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Harold M.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120182735

Agency No. P8-14-0114

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated July 6, 2018, finding that it
complied with the terms of two settlement agreements, dated December 16, 2015 and January
19, 2018, 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

During the period at issue, Complainant worked as a IT Software Specialist for the Agency in
Scottsdale, Arizona. Believing that the Agency subjected her to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.

On December 16, 2015 and January 19, 2018, Complainant and the Agency entered into two
settlement agreements to resolve the matter.

The December 16, 2015 settlement agreement provided, in pertinent part, that:

1(g) [The Agency agrees to] [m]itigate Complainant’s July 23, 2015 Three-Day
Suspension Decision to a Letter of Discipline as defined by Article 29,

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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Section 7 of the Agency CBA. The suspension decision SF-50 will be
cancelled and removed from Complainant’s Official Personnel File (OPF).
The Suspension Decision letter will be changed to a Letter of Discipline,
signed by Management, and then placed in the Complainant’s eOPF. This
expungement will occur within (90) calendar days of this Agreement. In
addition, the subject Letter of Discipline, and any documentation still in
existence related to the original suspension, will be removed from
Complainant’s eOPF and all supervisory files two years from the date of
the suspension decision (a removal date of July 23, 2017) if Complainant
has no further disciplinary issues as delineated under the DCMA Table of
Penalties for Discipline. Further, as part of the mitigation of the
referenced Suspension decision, the Agency will process the cancellation,
correct Complainant’s time card to reflect regular hours, and forward the
backpay request to DFAS within 90 (ninety) calendar days of this
Agreement.2

The January 19, 2018 settlement agreement provides, in pertinent part:3

3. [The Agency] agrees to:

a. Within thirty (30) calendar days of the effective date of this agreement,
DCMA Phoenix will initiate the paperwork necessary to cancel the 1-
day suspension which was effective on [September 5, 2017]. The
Agency will take the necessary steps to remove the action from the
Electronic Official Personnel Folder (eOPF) and expunge it from the
Civilian Personnel On Line (CPOL) system. This removal and
expungement may take as long as 90 days to complete.

By email to the Agency dated June 4, 2018, Complainant alleged breach of the settlement
agreements and requested that his underlying complaints be reinstated. In the December 2015
settlement agreement, Complainant asserted the Agency breached provision 1(g). Complainant
asserts that the Agency provided documentation to DOD Consolidated Adjudications Facility
(CAF) regarding a suspension, which should have been removed from Agency files.
Complainant also asserts that the Agency breached the January 2018 agreement. Specifically,
Complainant asserts that “the Agency agreed to remove the Notice of Proposed Suspension dated
[July 20, 2017] from all records, in lieu of a [Letter of Warning and Instruction] that is scheduled

2 The December 2015 settlement agreement reflects that the Agency provided other
consideration that is not at issue herein.

3 The record reflects that the January 19, 2018 settlement agreement settled two grievances and
an EEO matter that was before OFO on appeal. The record reflects that the Agency provided
other consideration which is not at issue herein.
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to be removed on [July 20, 2018]. The Agency also provided that notice to DOD CAF in
violation of our agreement…”

In its July 6, 2018 final determination, the Agency found no breach breach of the two settlement
agreements. The Agency found “[p]ursuant to [provision] 1(g) of the agreement dated December
16, 2015, and the NSA dated January 19, 2018, the Agency agreed to remove the Letter of
Discipline and any documentation related to the original suspension from the eOPF and the
supervisory files. It makes no references to the [DOD CAF] or any other location where the
documents might exist. Additionally, the January 19, 2018, NSA only agreed to remove
documents from the Civilian Personnel Online (CPOL) and eOPF official records. It also makes
no reference to the DOD CAF or any other place where the documents might exist.”

The instant appeal followed.

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).

In the instant case, we are unable to determine whether the Agency breached the subject
agreements. The agreements require expungement or removal of specified discipline from certain
Agency files on specified dates. The record contains a memorandum to Complainant dated May
23, 2018 from DOD CAF. The memorandum provides that a preliminary decision has been
made by the DOD CAF to revoke Complainant’s eligibility for access to classified information.
We acknowledge the memorandum references the July 23, 2015 decision to suspend
Complainant for three days and the Complainant’s one-day suspension effective September 5,
2017. However, the record does not contain information on the Agency source that provided this
information to DOD CAF (i.e. Complainant’s eOPF, supervisor files etc). In addition, the record
does not provide information on the date DOD CAF received this information from the Agency.
Based on the foregoing, we are unable to determine based on the record before us if the Agency
is in breach of the December 2015 and Janaury 2018 settlement agreements.

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Accordingly, we VACATE the Agency’s final determination finding no breach of the settlement
agreements and we REMAND these matters for a supplemental investigation in accordance with
the Order below.

ORDER

Within sixty (60) calendar days from the date this decision is issued, the Agency shall:

1. Conduct a supplemental investigation to determine whether it is breach of the
December 2015 and January 2018 settlement agreements. The supplemental
investigation should obtain documentation and/or affidavits regarding the Agency’s
source (Complainant’s eOPF, supervisory files etc.) that provided DOD CAF with the
disciplinary documents in question. The supplemental investigation shall also obtain
information on the date the documents in question were forwarded to the DOD CAF.

2. Thereafter, the Agency shall issue a new final determination, with appeal rights to the
Commission’s Office of Federal Operations, regarding whether it is in breach of the
December 2015 and January 2018 settlement agreements in accordance with 29
C.F.R. § 1614.504.

The Agency must submit a report of compliance in digital format as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report must include a copy of the
supplemental investigation and the new final determination.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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,
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facility or department in which you work. 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

November 29, 2018
Date