[Redacted], Alba H., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2021001578 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alba H.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021001578 Hearing No. 430201900039X Agency No. 5W1C17004 DECISION On December 18, 2020, Complainant contacted the Equal Employment Opportunity Commission (“EEOC” or “Commission”) disputing the final agency decision (“FAD”), issued January 21, 2021, that it was in compliance with the terms of the settlement agreement 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 At the time of events giving rise to this complaint, Complainant was employed by the Agency and served as a Union Steward/President of the American Federation of Government Employees ("AFGE") on Shaw Air Force Base (“AFB”) in South Carolina. Believing that the Agency subjected her to unlawful discrimination, Complainant filed a formal equal employment opportunity (“EEO”) Complaint, and after an EEO investigation she requested a hearing before an EEOC Administrative Judge. While the case was pending before the AJ, on November 3, 2020, Complainant and the Agency entered into a negotiated settlement agreement (“NSA”) to resolve the matter. At issue are terms (a) and (b), of Paragraph 2, which, in relevant part, provide that: 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. 2021001578 2 2(a) The Agency agrees to make one (1) settlement payment in the amount of one hundred thousand dollars and zero cents ($100,000.00) payable to [Complainant]…. 2(b) The Agency shall make a request to the Defense Finance and Accounting Service (“DFAS”) to pay Complainant the settlement payment of $100,000.00 (as described in paragraph 2.a.) within forty-five (45) calendar days of the date an original of this Agreement has been signed by all parties and served on [named Agency Litigation Attorney (“A1”)]. Complainant understands and acknowledges that the settlement payment is made by DFAS and is not under Agency control. The Agency’s initiation of the afore-described settlement payment process shall fulfill its obligations under this paragraph. Based on the record, the Agency’s 45-day window to comply with Term 2(b) concluded on December 18, 2020. In addition to A1, the Agency officials involved in processing the payment included a Shaw AFB Attorney Advisor (“A2”) and the Management Budget Officer (“MBO”) for the Shaw Finance Office. On December 8, 2020, Complainant notified the Shaw AFB Superintendent, Equal Opportunity Dispute Resolution Program Manager (“PM”) in writing that the Agency breached Terms 2(a) and 2(b) and acted in bad faith by intentionally delaying compliance. Specifically, she said that neither her bank, nor DFAS, had a record of payment of the $100,000 settlement award. Complainant asked that her complaint be reinstated for a hearing. PM acknowledged Complainant’s breach allegation and informed her that the Agency would send her a formal reply. A few hours later, Complainant received an email from A1, informing her that the Agency submitted the payment request to DFAS on December 2, 2020, and “[a]ccordingly, the Agency has satisfied its obligation under paragraph 2(a) of the Settlement Agreement.” On December 10, 2020, Complainant, notified A1, A2 and MBO by email that neither DFAS nor the AF Personnel Office any record of a payment request for $100,000 to Complainant by the Shaw AFB Finance Office on December 2, 2020 or any other date. On December 17, 2020, Complainant notified A1, A2, and MBO, by email that she confirmed with DFAS that there was still no record of a $100,000 payment or pending payment under her name within the DFAS system, nor was there any record that the Shaw AFB Finance Office initiated such a payment. She also confirmed with the Office of Personnel Management (“OPM”) that a payment of a settlement award should have been processed through the Shaw AFB Finance Office, and that neither OPM nor AF Personnel had any record in her personnel file that she was to receive a $100,000 payment. Complainant also stated that OPM and DFAS informed her that since there is no record on their end, the Agency must take the next steps to resolve the matter by contacting DFAS, and submitting a “Remedy Ticket,” to find the missing payment. Complainant further provided that DFAS checked for her and no remedy tickets were in the DFAS system for a payment to Complainant. 2021001578 3 In a separate December 17, 2020 email, Complainant informed A1, A2, and MBO, that “[a]ccording to DFAS, [MBO] and [A2] are the only individuals that have the information to verify such submission in DFAS.” On December 18, 2020, Complainant contacted the Commission in writing, alleging that the Agency was in breach of the Agreement. On December 21, 2020, the Agency notified Complainant that the $100,000 payment was deposited in her personal bank account on December 16, 2020. The Agency provided Complainant with a DFAS voucher number (DR1006951) and informed her that DFAS provided the bank transaction code 12709528 to use when following up with her financial institution. In her communications with the Commission, Complainant has not notified the Commission that the Agency cured the alleged breach. On January 21, 2021, the Agency submitted a Motion to Dismiss Complainant’s Appeal to the Commission, concluding that it was not in breach because Complainant received the $100,000 payment, referenced in Paragraph 2, on December 16, 2020. Alternately, the Motion argued that the appeal was improper and in breach of Paragraph 8 of the NSA. ANALYSIS Commission guidance requires EEO settlement agreements to contain the enforcement procedures available under 29 C.F.R. § 1614.504 in the event that the agency fails to comply with the terms of the resolution. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO MD-110”), at Chap. 3 § V. (Aug. 5, 2015). These procedures include the complainant's notification to the agency of the alleged breach; an opportunity for the agency to either cure the breach or to notify the complainant of what action if any that it plans to take; and the complainant's right to appeal to the EEOC from the agency's decision. The regulation set forth in 29 C.F.R. 1614.504(b) provides that after notification by a complainant of alleged noncompliance with a settlement agreement, that agency should resolve the matter and respond to the complainant. The Commission has interpreted this provision as allowing the agency the opportunity to cure any breach that may have occurred. See Covington v. United States Postal Serv., EEOC Appeal No. 01913211 (Sept. 30, 1991). One purpose of requiring complainants to notify the Agency of alleged noncompliance is to provide the Agency with an opportunity to cure any breach that has occurred. See Grant v. Dep’t of Health & Human serv., EEOC Appeal No. 012000759 (Apr. 24, 2000) citing Child v. Dep’t of Transportation, EEOC Appeal No. 01952080 (Jan. 26, 1996). In its January 21, 2021 Motion to Dismiss Complainant’s Appeal, the Agency alternately argued that the instant breach claim must be dismissed as Complainant breached Paragraph 8 of the NSA, which contained instructions for raising a breach claim based on 29 C.F.R. 1614.504. Specifically, the Agency contends that Complainant contacted the Commission without providing proper notice of the alleged noncompliance, and an opportunity to resolve the matter. 2021001578 4 The record reveals that Complainant notified the Agency that it was in breach by email on December 8, 2020, where she alleged that the Agency, particularly A1, acted in bad faith, delaying compliance and ultimately breaching the terms under Paragraph 2 of the NSA. PM confirmed receipt the same day. On unspecified dates, the EEO Director attempted to reach Complainant by phone, then sent an email on December 16, 2020 acknowledging Complainant’s breach allegation. The record further reveals that on December 17, 2020, Complainant replied to the EEO Director, and confirmed that she intended to proceed with her breach claim by describing the Agency’s actions as an “absolute breach of settlement.” While she did not use the term “breach,” Complainant’s other December 17, 2020 emails directly placed the relevant Agency officials on notice that their obligations under Terms 2(a) and 2(b) had not been met.2 The Agency’s January 21, 2021 Motion responded to Complainant’s breach allegation, and effectively provided “a determination as to whether the Agency has complied with the terms of the settlement agreement,” per Term 8(c). Nothing in the Agency’s Motion, which contends that it fully met its obligations under the NSA, indicated that it required an opportunity to cure, or, “resolve the matter” per Term 8(b). Therefore, while Complainant’s submission was premature, we exercise our discretion to accept her breach allegation as a timely appeal and adopt the Agency’s January 21, 2021 statement as its Final Agency Decision (“FAD”). 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 (Dec. 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 Req. No. 05900795 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). Further, the Commission has held that 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 Def., EEOC Request No. 05910576 (Aug. 29, 1991) (agreement that did not specify length of service for position to which complainant was promoted was not breached by the temporary detail of 2 The Agency included one of the December 17, 2020 emails describing noncompliance as an attachment to its January 21, 2021 Motion, yet omitted it from its summation of events; Complainant’s email alleging breach was not included with the attachments. 2021001578 5 complainant two years after the execution of the settlement agreement), Gomez v. Dep’t of the Treasury, EEOC Request No. 05930921 (Feb. 10, 1994). To comply with Term 2(a), the Agency must pay Complainant $100,000 within a “reasonable amount of time.” Here, while Term 2(b) provides 45 days for the Agency to request payment from DFAS, the actual payment was required within a reasonable period of time. In order to effectuate that payment, the Agency has a continuing duty, beyond its initial request to DFAS, to engage in good faith efforts to ensure that the payment is actually made to Complainant pursuant to Term 2(a) within a reasonable amount of time. In its FAD, the Agency maintains that it fully complied with Terms 2(a) and 2(b) and that DFAS paid Complainant the $100,000 on December 16, 2020. According to Complainant, DFAS has no record of the Agency’s payment request, and she never received payment. It is the burden of the Agency to provide evidence or proof to substantiate its final decision. See Complainant v. Dep't of Commerce, EEOC Appeal No. 0120142525 (Nov. 25, 2014) quoting Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). This burden extends to establishing compliance with settlement agreements, including those with DFAS- dependent terms. See, e.g. Sade M. & Elsa R. v. Army, EEOC Appeal Nos. 0120180292 & 0120180294 (Feb. 22, 2019) (breach found where the agency said it was in substantial compliance with the agreement because it submitted the proper paperwork to DFAS, yet offered no evidence to establish which documents DFAS required, and proof of what specific documentation was provided to DFAS), Harris v. Dep't of Health & Human Serv., EEOC Appeal No. 0120120987 (May 3, 2012), recon. den., EEOC Request No. 0520120477 (Nov. 16, 2012) (breach found where the agency stated that it calculated the complainant’s leave award based on its conversations with DFAS, yet could not provide any evidence of the conversations, such as an affidavit or statement from either an individual in the Division or DFAS to support that assertion), and Deloatch v. Dep’t of the Air Force, EEOC Appeal No. 0120091778 (Aug. 2, 2011) (breach found where the agency failed to submit the necessary paperwork to DFAS "within twenty calendar days of the effective date of this agreement" where the complainant submitted evidence that the Agency did not provide information to DFAS until months beyond the agreed upon time limit without explanation). While the Agency’s FAD asserts that it complied with the terms of the settlement agreement, it does not provide sufficient supporting evidence. Specifically, it provides us with a copy of the December 8, 2020 email from A1 informing Complainant that the Agency submitted the payment request to DFAS on December 2, 2020. However, this does not establish that Complainant was actually paid, or even that the request was actually submitted. The Agency’s proffered evidence that Complainant received a payment of $100,000 from DFAS to her personal bank account is the December 21, 2020 email to Complainant stating the payment was made and an unverified voucher number. Acceptable proof of payment includes screen shots indicating an electric funds transfer, copies of canceled checks, or written confirmation by the complainant or their representative that payment was received. See EEO MD-110 Appx. Q. 2021001578 6 CONCLUSION The Agency’s final determination of compliance with the settlement agreement is VACATED. As there is insufficient documentation provided by the Agency of Complainant’s actual receipt of the payment required under the settlement agreement, the Agency shall comply with the Order below. ORDER 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall conduct a supplemental inquiry to confirm whether a payment of $100,000 was actually sent to Complainant’s bank account by DFAS in accordance with Term 2(a) of the settlement agreement, and then supplement the record with evidence of such. Complainant shall cooperate with the Agency in this regard. Following this inquiry, the Agency shall issue a new final decision addressing the issue of whether it has fully complied with Paragraph 2 of the settlement agreement with appeal rights to the Commission. 2. The Agency shall submit a copy of the final decision to the Compliance Officer as referenced in the paragraph entitled “Implementation of the Commission's Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2021001578 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021001578 8 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, 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 April 22, 2021 Date