[Redacted], Candance C., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Aug 18, 2021

Appeal No. 2021002529 (E.E.O.C. Aug. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candance C.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2021002529 Agency No. 20-0047-HQ-HC DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated March 1, 2021, finding 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 worked as a Human Resources Specialist with the Agency’s Oak Ridge Shared Service Center at the Agency’s Headquarters in Washington, District of Columbia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 9, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: Except as provided herein, DOE and Complainant agree not to disclose the terms and conditions of this Agreement; provided however that if required by statute, regulation, Office of Special Counsel request, Congressional request, Internal Revenue Service request, security clearance request or order of a court of 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. 2021002529 2 competent jurisdiction, the terms and conditions of this Agreement shall be disclosed to the extent so required; and provided further that DOE may disclose the terms and conditions of the Agreement to employees of DOE who possess a need to know the information, the Equal Employment Opportunity Commission, or a court of competent jurisdiction for the purpose of facilitating the terms of this Agreement; and provided further that Complainant may disclose the terms and conditions of this Agreement to her immediate family, attorney, and her tax advisor. (Settlement Agreement, ¶ 8). By letter to the Agency dated November 4, 2020, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with Paragraph 8, the non-disclosure provision, of the Settlement Agreement when: 1. On September 11, 2020, the Director of the Oak Ridge Human Resources Shared Service Center (Director) send an email informing the Employee and Labor Relations team that Complainant would be reporting to a new supervisor; and 2. On or around October 2020, the Deputy Director and a Human Resources Specialist alluded to terms of the Settlement Agreement while processing Complainant’s reasonable accommodation request. In its March 1, 2021 FAD, the Agency concluded Claim 1 was not timely filed and Claim 2 did not constitute a breach of the Settlement Agreement. Complainant filed the instant appeal. Neither Complainant nor the Agency filed a brief in support of their position on appeal. 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. 2021002529 3 See Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). EEOC Regulation 29 C.F.R. § 1614.504(a) also provides that if a complainant believes that the agency has failed to comply with the terms of a settlement agreement or decision, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. The Settlement Agreement also provides that “[i]f either party believes that the other has failed to comply with the terms of this Agreement, that party shall notify the DOE’s Director of the Office of Civil Rights, in writing, of the alleged noncompliance within thirty (30) calendar days of when the party knew or should have known of the alleged noncompliance, as required under 29 CFR § 1614.504(a).” (Settlement Agreement, ¶ 15). Complainant contends the first breach occurred on September 11, 2020, when the Director sent an email to multiple people stating that Complainant had a new supervisor. Complainant states the Director was not in a “need to know” position regarding the terms of the Settlement Agreement, and if she was, then the Director should not have communicated the terms of the Settlement Agreement to Complainant’s colleagues and peers who did not have a need to know terms of the Settlement Agreement. Complainant stated she learned about the email from a coworker who questioned the change in supervisors. However, she did not contact anyone about a breach of the Settlement Agreement until October 16, 2020, when she reached out to the EEOC. This was more than 30 days after Complainant knew of the Settlement Breach. Both the Settlement Agreement and 29 C.F.R. § 1614.504(a) require Complainant to notify the Agency within 30 days of when she knew or should have known about the breach. She did not file her breach allegations with the proper party until November 4, 2020. Therefore, the Agency correctly dismissed this claim as untimely filed. In terms of Complainant’s second breach allegation, it appears she believed breaches occurred in October 2020 because the Deputy Director and the Human Resources Specialist were aware of the Settlement Agreement and alluded to it while processing her request for reasonable accommodation. She contends they did not have a need to know about the Settlement Agreement or its terms. The Agency contends that because some of the items requested by Complainant in her request for reasonable accommodation were already provided to her pursuant to the Settlement Agreement, it was necessary for the Settlement Official and the Agency attorney involved in the Settlement to inform the Deputy Director and the Human Resources Specialist of these matters because they were processing Complainant’s request for reasonable accommodation. As noted, the Settlement Agreement does provide for disclosure of the terms and conditions of the Settlement Agreement to employees of the Agency with a need to know the information for the purpose of facilitating the terms of the Settlement Agreement. The affidavit of the Deputy Director shows that she learned about the specific terms in the Settlement Agreement as she was directed by the Settlement Official to carry out the terms of the Settlement Agreement because she was not in Complainant’s supervisory chain. 2021002529 4 Thus, the Deputy Director had a clear need to know about the Settlement Agreement and its terms for the purposes of facilitating the Settlement Agreement. The Human Resources Specialist’s affidavit shows that she was not aware of the specific terms of the Settlement Agreement. It also shows she became aware the Settlement Agreement addressed telework and supervisors only because those matters were relevant to the reasonable accommodation process in that Complainant had requested accommodation related to those matters, but they had already been provided to Complainant as part of the settlement process. Complainant has failed to demonstrate that the Deputy Director or the Human Resources Specialist did not have a need to know the information they each had about the Settlement Agreement. Moreover, it appears their knowledge of the terms of the agreement was limited to what each of them needed to know in their respective roles. Thus, Complainant has failed to show the Agency breached the Settlement Agreement. CONCLUSION Accordingly, the Agency’s decision was proper and is AFFIRMED. 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 2021002529 5 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). 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. 2021002529 6 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 August 18, 2021 Date