[Redacted], Carey G., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020003366 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carey G.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2020003366 Hearing No. 430-2016-00530X Agency No. DEA-2015-02305 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated May 1, 2020, finding that it was in compliance with the terms of the settlement agreement into which the parties entered regarding Complainant’s equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the complaint for further action. ISSUE The issue is whether the Agency properly determined that it did not breach the settlement agreement with Complainant. 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. 2020003366 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Diversion Investigator (GS-1801) at the Agency’s Greensboro Resident Office in Greensboro, North Carolina. Complainant stated that in 1995, he lost use of his right arm. Report of Investigation (ROI) at 92. Complainant stated that in late 2014, he applied for a Special Agent/Criminal Investigator position and learned that he was not selected on August 22, 2015, for failing to meet the Agency’s medical requirements. ROI at 55, 93. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process and alleged discrimination based on his disability (loss of use of right arm), when on August 22, 2015, Complainant learned that he was not selected for the position of Criminal Investigator (GS-1811), advertised under Announcement Number BA2014, because he did not meet the Agency’s medical requirement. Complainant contended that the Agency failed to inform him of the medical requirements. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion for Summary Judgment, which the AJ denied, and he scheduled a hearing for September 9-10, 2019. On August 28, 2019, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 1. [The Agency’s] Medical Review Board (“MRB”) will convene, at its earliest opportunity, to determine whether Complainant is capable of training to perform the full range of essential functions of [an Agency] Special Agent, without endangering the health or safety of [Complainant], employees, or others through waiver of the medical standard(s), with or without reasonable accommodations. 2. At least forty-six (46) calendar days prior to the MRB re-convening, Complainant will be provided with written notice (“Notice”) identifying the specific medical standards for the Special Agent position that [the Agency’s] Health Services Unit believe that Complainant cannot meet and advising him that he may, within forty-five (45) calendar days of the date of the Notice, provide [the Agency] with documentation: a. demonstrating that the identified medical standard(s) has been satisfied, or b. demonstrating that he, through waiver of the identified medical standard(s), with or without reasonable accommodation, is capable of training to perform the full range of essential functions of [an Agency] Special Agent, without endangering the health and safety of [Complainant], employees, or others. Supporting materials may include, but are not limited to, the materials explicitly identified in the Notice and in the May 22, 2018 Medical Review Board Standard Operating 2020003366 3 Procedures, the video Complainant submitted on June 4, 2019, in the above- captioned matter, any affidavits Complainant seeks to introduce, and any other materials Complainant deems relevant. 3. After considering all evidence submitted by Complainant, to the extent that the MRB determines that Complainant is not capable of training to perform an essential function of [an Agency] Special Agent, or has a question or concern about Complainant’s ability to train to perform an essential function of [an Agency] Special Agent, before reaching a final decision, the MRB will provide Complainant an opportunity to meet with [an Agency] subject matter expert (or subject matter experts, should more than one function be identified) to physically demonstrate his ability to train to perform the function(s) in question, with or without reasonable accommodations. The subject matter expert(s) will then assess Complainant’s ability to train to perform the function(s) of [an Agency] Special Agent, and the MRB will consider the subject matter expert(s) assessment(s) in determining whether or not to grant Complainant a waiver of the medical standard(s). On September 18, 2019, the Agency sent Complainant the medical standards for a Special Agent position that it believed that Complainant could not meet and provided him 45 days to respond. On January 24, 2020, the Agency sent Complainant a list of essential functions of the Special Agent position and invited him to meet with subject matter experts on February 3 and 14, 2020, to demonstrate his ability to perform the functions. Complainant attended the scheduled sessions with the subject matter experts. On April 2, 2020, the MRB met again and declined to grant Complainant a waiver of the medical standards to permit him to continue in the application process for a Special Agent position, based on the totality of information, including Complainant’s demonstrations. On April 26, 2020, Complainant sent a letter to the Acting EEO Director and stated that there was a “substantial failure” on the Agency’s part to comply with the settlement agreement. Complainant argued that, while the Agency provided a list of tasks, it was “designed and administered” in a way to deprive him of any meaningful preparation since he only had seven days to prepare. Complainant asserted that he was given minimal instructions or preparation, and he was expected to accomplish the tasks without a reasonable accommodation. Complainant argued that, per the terms of the settlement agreement, he was assured an opportunity to become familiar with the requirements of the tasks and obtain help from subject matter experts on how to satisfactorily complete the tasks. Complainant also argued that the Agency did not explain how he failed to meet the Agency’s requirements, and that he was only issued a “three-line letter.” Complainant requested a more definitive description of his failures and an opportunity to discuss any reasonable accommodations with the subject matter experts. 2020003366 4 On or about May 1, 2020, a Senior Attorney (SA) in the Agency’s Office of Chief Counsel responded to Complainant’s correspondence to the Acting EEO Director.2 The Agency stated that it fully complied with its obligations in the settlement agreement, and that none of Complainant’s identified issues constituted breaches of the settlement agreement. Specifically, the Agency stated that there are no terms in the settlement agreement that required the Agency to provide Complainant with any specific amount of time to prepare for the demonstrations or to assist him in identifying reasonable accommodations; and that the subject matter experts merely required that Complainant demonstrate an ability to train to perform these tasks in a way that was both safe and effective, and many of the alternative approaches Complainant proposed were neither safe nor effective. The Agency also stated that Complainant’s allegation of a settlement breach on April 26, 2020, was untimely because his allegations of non-compliance related to alleged breaches of the agreement occurring on or before the February 3, 2020 and February 14, 2020 demonstrations. Complainant filed the instant appeal and submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal, and Complainant submitted a response to the Agency’s opposition. Complainant also filed a “Request to Preserve and Protect” all information and documents, which the Agency opposed.3 CONTENTIONS ON APPEAL Complainant’s Contentions Through his attorney, Complainant states that on January 27, 2020, the Agency provided a list of 36 required tasks to be performed on February 3 and 14, 2020. Complainant asserts that he was assigned ten minutes to understand, learn, and perform each task, while trainees are taught to perform these duties over sixteen weeks during a training academy. Complainant argues that the Agency knew that he was unable to perform certain tasks, such as firing a weapon with two hands, and did not offer him an accommodation. Complainant states that he was not provided an alternative to accomplish tasks; did not always understand the instructions; and was told he could not perform tasks his way. Complainant notes that the Agency did not inform him which areas he failed, either during the demonstration sessions or in the Agency’s determination letter. 2 We note that SA participated in the litigation of Complainant’s complaint, including providing the Agency’s opposition brief to the instant appeal. We remind the Agency of its obligation to separate its EEO program from its defense function, pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 1, § IV.D. (Aug. 5, 2015). 3 We note Complainant presented no arguments or evidence of a possibility that the Agency will destroy any evidence; accordingly, the Commission declines to grant his request. 2020003366 5 Complainant argues that the Agency did not comply with the spirit of the settlement agreement and requests that the Commission order the Agency to fulfill its obligation under the agreement. In his response to the Agency’s opposition brief, Complainant requests that the Commission send his complaint back for a hearing. Agency’s Contentions The Agency argues that Complainant did not exhaust his administrative remedies prior to filing his appeal because he did not send notice of his allegation of a settlement breach to the Agency’s EEO Director, but rather, he sent his notice to the EEO Director of a component of the Agency. The Agency also asserts that Complainant’s April 26, 2020, notification was untimely because he knew, or should have known, of a settlement breach on January 24, 2020, when the Agency sent him a list of essential functions. The Agency argues that Complainant did not establish a breach of the settlement agreement. The Agency states that it agreed to a four-step process to reevaluate Complainant’s candidacy, and that it complied with each step. In addition, the Agency asserts that Complainant has not identified any actual breach of the settlement agreement, and his allegations include conduct not required by the settlement agreement. For example, the Agency states that the settlement agreement did not include more time for Complainant to prepare for his demonstrations. The Agency requests that the Commission reject Complainant’s allegations of a settlement agreement breach. ANALYSIS AND FINDINGS 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 find the settlement agreement unenforceable for lack of consideration. One requirement to establish a valid contract is consideration from both parties. Namely, each party must incur some legal detriment in exchange for the other party’s promise. 2020003366 6 Generally, the adequacy or fairness of consideration is not addressed, so long as some legal detriment is incurred in exchange for the bargain. If one party incurs no legal detriment, however, then the Commission may render the agreement void for lack of consideration. See DuBois v. Soc. Sec. Admin., EEOC Request No. 05950808 (Sept. 26, 1997) (citing Juhola v. Dep’t of the Army, EEOC Appeal No. 01934032 (June 30, 1994); Terracina v. Dep’t of Health and Human Serv., EEOC Request 05910888 (Mar. 11, 1992)). The document signed by both parties, on or about August 28, 2019, contains no consideration from the Agency. The Agency appears to have undertaken no legal detriment when it agreed to evaluate Complainant’s ability to be trained to perform the full range of essential functions of a Special Agent position, without endangering the health or safety of Complainant, employees, or others through a waiver of the medical standard(s), with or without reasonable accommodations. We find that the Agency essentially agreed to provide Complainant with an individualized assessment of whether his disability posed a direct threat of substantial harm. EEOC Regulation 29 C.F.R. § 1630.15(b)(2) provides that an employer may require that an individual not pose a direct threat to his health and safety, or that of others. However, an agency cannot exclude qualified individuals with disabilities from employment based upon fear of a future risk of injury, without engaging in the individualized assessment required by the Rehabilitation Act into whether their disabilities pose a “direct threat” of substantial harm. A “direct threat” is defined as: “a significant risk of substantial harm” which cannot be eliminated or reduced by reasonable accommodation. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r). We find that the Agency, in merely agreeing to treat Complainant in accordance with the law, provided Complainant nothing more than that to which he was entitled to as matter of law, and accordingly, he received no consideration for his agreement to withdraw his EEO complaint. Based on the foregoing, we find that the settlement agreement is void. The Agency should reinstate Complainant’s complaint for further processing from the point processing ceased. Accordingly, we VACATE the Agency’s final decision finding that no breach of the settlement agreement occurred, and we REMAND complainant’s complaint for further processing at the point where processing previously ceased, as directed below. CONCLUSION Therefore, after a careful review of the record, including Complainant’s arguments on appeal, the Agency’s response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency’s final decision and REMANDS the matter to the Agency in accordance with this decision and the Order below. 2020003366 7 ORDER The Agency shall reinstate Complainant’s complaint and resume processing the matter from the point processing previously ceased pursuant to 29 C.F.R. Part 1614. The Agency shall, within 30 days of the date this decision is issued, notify Complainant that it has reinstated the settled matter. A copy of the letter to Complainant must be sent to the Compliance Officer referenced herein. 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. 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. 2020003366 8 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). 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. 2020003366 9 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 September 2, 2021 Date