[Redacted], Caroline E., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021003687 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Caroline E.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2021003687 Agency No. OBD201800380 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a May 14, 2021 final agency decision (“FAD”) that found the Agency 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 Trial Attorney with the Environmental Enforcement Section (“EES”), Environment and Natural Resources Division (“ENRD”), in Washington, D.C. On June 25, 2018, Complainant and the Agency entered into a negotiated settlement agreement (“NSA” or “Agreement”) to resolve a discrimination complaint that Complainant raised with an EEO Counselor.2 At issue is Provision 2(g) of the Agreement, which states: 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 June 25, 2018 NSA (Agency No. OBD201800380) was reaffirmed in its entirety in “Agreement #2,” executed on November 20, 2019 (Agency Nos. OBD201800380, OBD202000190), which also resolved a separate EEO action and an unrelated breach claim. 2021003687 2 Upon the effective date of this Agreement, EES Assistant Section Chief [“ASC”], or in his absence or departure from the Agency, his designee, will serve as Complainant's point of contact to assist Complainant with addressing issues that arise with regard to future work assignments and meetings involving possible interactions with [her alleged harasser (“AH”)]. The Agency will ensure that [AH] will not be in Complainant's supervisory chain or involved in any personnel decisions regarding Complainant…[ASC] will work with Complainant to develop a plan to minimize interactions between the two, to the extent practicable, recognizing that the Agency cannot guarantee that there will be no incidental contacts or that all interactions between Complainant and [AH] can be avoided. [ASC] also will provide a private, confidential, verbal apology to Complainant within 10 days of the effective date of this Agreement. (Emphasis added). On March 8, 2021, and again on April 27, 2021, Complainant, through counsel, formally notified the Agency in writing that it was in breach of Provision 2(g) of the Agreement. She requested specific performance, along with additional relief and remedial measures to prevent further breaches from occurring. The record provides the following relevant information: In August 2020, Complainant became aware that AH was accepted for a detail as the Acting Director, Air Enforcement Division (“AED”), at the Environmental Protection Agency (“EPA”). The EPA AED was the Client Agency for the Volkswagen case, a high-profile action involving emissions, which Complainant had been working on since 2016. At the time of the alleged breach, Complainant estimates that the Volkswagen case comprised 20% to 40% of her workload, as she served as lead negotiator on the Agency’s settlement team and took the lead on briefing and submitting recommendations for approval to both Agency and AED management officials. As the Acting Director for AED, AH would attend Complainant’s briefing presentations regarding the Volkswagen case, and have approval authority over Complainant’s recommendations on the litigation of the Volkswagen case. On August 10, 2020, Complainant notified ASC that she was concerned that the EPA detail would violate the Agreement and asked whether ENRD and/or EES informed EPA of the terms of the Agreement limiting her contact with AH to the extent practicable, and what the Agency’s plan was should she have to communicate with AH about the Volkswagen case. When she hadn’t heard back, Complainant followed up through counsel on August 19, 2020. ASC responded the next day that, among other things, AH would not be in Complainant’s chain of command, and, “[w]e do not believe it is necessary or practicable to inform EPA of the terms of the settlement agreement.” As for the plan to minimize contact, ASC informed Complainant, “[i]n any instance where you anticipate [AH] participating in any call or meeting involving one of your cases - or a case in which you are playing an advisory role (e.g., your EJ work) - you may communicate any information about the case through [Complainant’s manager in ENRD] (or other manager overseeing the case), who will share the information with [AH].” 2021003687 3 On October 26, 2020, Complainant notified ASC when she learned that AH, in violation of the August 20, 2020 plan provided by ASC, planned to attend a December 4, 2020 Volkswagen briefing for five ENRD and AED management officials, where she was scheduled to be the main presenter and offer recommendations on the course of litigation. ASC’s initial solution included allowing AH to attend the meeting, and, for future meetings where both Complainant and AH were attendees, AH would attend, and Complainant could skip the meeting to be briefed by another attendee afterward. After more back and forth, on October 29, 2020, ASC informed Complainant that the AED Deputy Director (“DD”) would attend all Volkswagen- related meetings instead of AH. Following her December 4, 2020 briefing presentation, Complainant obtained decisions on her litigation recommendations from all management officials except for DD, who made it clear that he needed to consult with AH first, and that AH was still the decision-maker on Volkswagen case litigation matters. Complainant asked the Agency to direct AH to fully recuse himself from the Volkswagen case, reasoning that his continued decision-making authority over her work product was in violation of the Agreement. On January 7, 2021, the Agency, having initially denied her requests, notified Complainant, through counsel, that AH recused himself from the Volkswagen case. However, Complainant received conflicting information from a colleague at EPA (“C1”), so she contacted the Agency on January 14, 2021, requesting clarification and a written confirmation of the recusal. On January 21, 2021, Agency counsel responded: “We understand that [AH] has delegated and will continue to delegate to [DD] all matters in this case that involve DOJ.” However, the Agency noted that AH may be involved “in issues or decisions within EPA that do not entail consultation or interaction with DOJ.” Complainant believed this was still too vague to ensure that AH would not have decision-making authority over her work product. On February 4, 8, 9, 16, and 18, and March 2, 2021, Complainant became aware from emails and conversations with C1 and others, that EPA staff were still consulting AH and requesting AH’s approval on DOJ-related matters pertaining to the Volkswagen case. On March 8, 2021, Complainant notified the Agency that it was in breach of the Agreement, as AH still had decision-making authority over her work product. She notified the Agency again on April 27, 2021, after learning that AH continued to be included in EPA briefings and in the decision- making process for litigation matters related to the Volkswagen case. The FAD concluded that the Agency did not breach Provision 2(g) of the Agreement. The instant appeal followed. 2021003687 4 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 (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 Request 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). 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). The Agency contends that it is not in breach of Provision 2(g), arguing that Complainant’s interpretation of the term “supervisory chain,” is overly broad, as AH’s detail is at the EPA, and therefore, he lacks supervisory authority over any Agency personnel. It further asserts that based on the language of the Agreement, it “is under no obligation to remove [AH] from any role or responsibility, while at EPA, on the Volkswagen case simply because Complainant is also working on this case.” The Agency argues that it fully complied with its obligation under Provision 2(g) to “develop a plan to minimize interactions between [Complainant and AH] to the extent practicable” by ensuring that AH did not attend any briefings where Complainant was present, and designating alternate points of contact for AH, ensuring Complainant would not have to communicate directly with AH. The Agency emphasizes that Provision 2(g) allows for the possibility that interactions between Complainant and AH “may occur” and “the Agency cannot guarantee that there will be no incidental contacts or that all interactions between Complainant and [AH] can be avoided.” 2021003687 5 Complainant alleges that the Agency breached Provision 2(g) by authorizing AH to accept a detail as Acting Director at the EPA AED, without requiring him to recuse himself from the Volkswagen case, as it essentially placed him in a supervisory role over Complainant. She cited a Memorandum of Understanding (“MOU”) between EPA and DOJ and “decades of established practices” where EPA refers matters for litigation to DOJ. Under these practices and the MOU, AH would likely decide the outcome, should disagreements arise between agencies regarding the appropriate course of litigation on the Volkswagen case. Ultimately, she argues, AH had been placed in a position of power over Complainant. We agree with the Agency regarding the portion of Provision 2(g) requiring it to “ensure that [AH] will not be in Complainant's supervisory chain.” We note that by Complainant’s own account, AH was not the only deciding official on her litigation recommendations for the Volkswagen case, as she presented her recommendations to management officials within both the Agency and the EPA. Even considering the MOU between the Agency and the EPA, and AH’s potential influence over her work product in his role as senior management official at her Client Agency, the plain language of the Agreement is limited to supervisory positions within Complainant’s supervisory “chain.” By virtue of the fact that AH’s detail was with the EPA, an entirely different agency, he could not be within “Complainant's supervisory chain or involved in any personnel decisions regarding Complainant.” Nothing in the plain language of the Agreement requires the Agency to prevent AH from having any authority or involvement whatsoever in the litigation projects Complainant handled. If this was Complainant’s intent when entering the Agreement, she should have included it in writing, otherwise such an interpretation cannot be enforced. See Carter v. Dep’t of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing Jenkins-Nye v. Gen. Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). Alternately, Complainant alleges that the Agency breached Provision 2(g) by failing to meet its obligation to “minimize interactions between [Complainant and AH], to the extent practicable” when it failed to notify the EPA of the Agreement yet did not require AH to recuse himself from the Volkswagen case. She argues that all her counterparts at EPA answered to AH, forcing her to interact with him indirectly. Complainant also asserts that AH previously disregarded and attempted to disregard the terms of the Agreement and the plans she established with ACS to avoid interaction with him. The Agency’s failure to notify the EPA of its obligations improperly allowed AH to determine when and how to interact with Complainant while serving his detail. Based on the application process, the Agency was on notice that granting AH’s detail request could conflict with its obligation to minimize his contact with Complainant in accordance with Provision 2(g). In other words, the Agency’s repeated insistence that AH “independently” applied for the detail is misleading. The EES Deputy Section Chief (“DSC”), who was also AH’s supervisor, testified that the EPA reached out to EES about the vacant Director position, and specifically requested that an individual from EES be detailed to the position as an Interim (Acting) Director until a new Director was selected. According to DSC, the entire EES Section was notified of the detail opportunity (number of qualified candidates unspecified), and AH was among multiple EES employees to interview with the EPA for the detail. 2021003687 6 DSC explained that EES had no input on the interview process but averred that it had approval power over whether to grant the selectee the detail. After the EPA selected AH, he notified DSC, who recommended his approval to ENRD and other (unspecified) “Department Leaders.” The Agreement was signed by the Human Resources Director for ENRD, presumably a “Department Leader,” and DSC was already aware of the Agency’s obligation to minimize AH’s contact with Complainant per Provision 2(g) of the Agreement. Specifically, DSC had been assisting EES with the Agreement’s implementation since it was executed by “instructing [AH] as needed, to take or refrain from taking certain actions vis-à-vis [Complainant].” Despite this authority over the selection process and knowledge of the Agreement, the Agency did not “develop a plan” to ensure that the foreseeable interaction between Complainant and AH was minimized to the “extent practicable” until Complainant’s counsel contacted ASC on her behalf, after her initial inquiry went unanswered. While the Agency’s failure to develop a plan to minimize interaction upon recommending AH for the detail, ASC’s initial failure to engage with Complainant when she notified him of her concerns regarding AH’s detail, and ASC’s initial response when Complainant notified him that AH intended to violate their August 20, 2020 plan to minimize interaction, we conclude that the Agency ultimately complied with Provision 2(g). On August 20, 2020 and October 29, 2020, the Agency timely cured these lapses by revising the plan to minimize contact to include concerns related to the detail and ensuring AH would not attend meetings Complainant attended. There is no evidence that AH ever engaged in any direct communication in any form with Complainant while serving the detail. As it achieved compliance using other methods to minimize contact between AH and Complainant, the Agency was under no obligation to take the courses of action requested by Complainant, i.e. notifying the EPA of the Agreement and/or requiring AH to completely recuse himself from the Volkswagen case. In reaching our decision over whether the Agency prevented contact “to the extent practicable,” we examined whether the contacts at issue went beyond the “incidental” contact permitted under Provision 2(g). Complainant raises matters such as AH’s participation in internal EPA briefings regarding her recommendations for the Volkswagen case, and statements EPA employees made to her about AH’s continued role with respect to the Volkswagen case. At most, such allegations describe “incidental” contact with AH, albeit indirectly. Significantly, Complainant has not provided an example of where AH improperly exercised his authority to disapprove or interfere with her litigation recommendations on the Volkswagen case (beyond simply discussing and signing off on them), causing his continued involvement to become more than “incidental” contact. She also failed to offer any evidence that the indirect contact of AH exercising his supervisory role with respect to Complainant’s EPA counterparts, impacted Complainant’s ability to do her job, or otherwise constituted more than “incidental” contact. 2021003687 7 Rather than specific action in breach of the Agreement, Complainant’s allegations evince her fear that the Agency is actively fostering a situation where a breach is more likely to occur, resulting in preventable contact with AH. The record is insufficient to elevate AH’s continued involvement with the Volkswagen case to a viable claim of breach. Subsequent Acts of Discrimination Do Not Constitute Breach Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. In the instant breach allegation, Complainant alleges that the Agency’s failure to notify the EPA of the Agreement and failure to require AH to recuse himself from the Volkswagen case while serving his EPA detail, created a hostile work environment for Complainant. Complainant’s hostile work environment claims concern new events that occurred outside the scope of the Agreement. To the extent Complainant sought to address new claims of AH causing a hostile work environment, she should contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. CONCLUSION Accordingly, we AFFIRM the Agency’s finding that it was not in breach of the Agreement. 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 2021003687 8 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. 2021003687 9 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 22, 2021 Date