[Redacted], Cathy V., 1 Complainant,v.Frank Kendall III, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2021000639 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathy V.,1 Complainant, v. Frank Kendall III, Secretary, Department of the Air Force, Agency. Request No. 2021002392 Appeal No. 2021000639 Agency No. 9R1M1900705 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000639 (Feb. 9, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the following reasons, we DENY the Agency’s request. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronic Integrated Systems Mechanic, WG-2610-12, at the Agency’s 402 Electronics Maintenance Group (402 EMXG) facility, located in Robins Air Force Base, Georgia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 20, 2019, 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. 2021002392 2 and the Agency entered into a settlement agreement (agreement) to resolve the matter. The settlement agreement provided, in pertinent part, the following:2 2. The Agency agrees to place [Complainant] in the next [WG]-2610-12,3 first line supervisor position that becomes available within the 402 EMXG. This action will be completed no later than 12 months from the effective date of this agreement. The Agency ultimately failed to place Complainant into a WG-2610-12, first line supervisor position within the allotted 12-month period. Consequently, Complainant filed a complaint on August 10, 2020, alleging breach of the agreement. In response to the complaint, the Agency commenced an investigation into the circumstances surrounding the breach. See Complaint File at 20. The investigation revealed that in June 2019, one month prior to the effective date of the agreement, the Agency reduced funding for the 402 EMXG, which resulted in cuts to staffing. Id. The investigation further revealed that funding for the 402 EMXG was again cut in October 2019, and that no WG-2610-12 position had been filled since June 2019 due to the reductions in funding. Id. On September 11, 2020, the Agency issued a final decision regarding Complainant’s breach of agreement claim. The decision concluded that the Agency did not breach the agreement because there was no WG-2610-12 position available for Complainant during the 12-month period covered in the agreement (i.e., July 2019 to July 2020). Complainant subsequently appealed the Agency’s final decision to the Commission. In EEOC Appeal No. 2021000639 (Feb. 9, 2021), we found that the Agency breached the agreement when it failed to place Complainant into a WG-2610-12, first line supervisor position. While we carefully considered the Agency’s contention that it could not perform in accordance with the agreement due to unforeseen budget cuts, the previous decision concluded that the impossibility of performance doctrine did not automatically relieve the Agency of its obligation to place Complainant into the next available WG-2610-12, first line supervisor position. On the contrary, the previous decision emphasized that the impossibility of performance doctrine, as applied here, meant that the Agency was only excused from performing its end of the bargain during the period when performance was impossible. 2 Our references to “Complaint File” refer to the document located in the underlying case file, EEOC Appeal No. 2021000639. 3 Paragraph 2 of the agreement provided that the Agency would place Complainant in a WS- 2610-12 position. Having reviewed the record, we find the reference to WS-2610 to be a typographical error, as Complainant noted during the EEO complaint process that she held a position in the Wage Grade (WG) series. Complaint File at 33. We also note that the last page of the Agency’s final decision references the promised position as WG-2610-12, not WS-2610-12. Id. at 16. As such, we have modified paragraph 2 of the agreement to reflect Complainant’s correct series. 2021002392 3 The previous decision ultimately found that the Agency could have performed in accordance with the agreement, as the record showed that the Agency had posted a vacancy announcement dated November 2, 2020, for a WG-2610-12, Electronic Integrated Systems Mechanic Supervisor position. As the Agency failed to place Complainant into that position, the previous decision concluded that the Agency breached the agreement. In accordance with Complainant’s request for specific performance, the previous decision ordered the Agency to place Complainant into the next available WG-2610-12, first line supervisor position and pay her backpay covering the difference between her current pay as a Electronic Integrated Systems Mechanic and the pay she would have received had she been promoted on November 2, 2020. The Agency then filed the instant request for reconsideration. In its request, the Agency initially argues that the Commission, in finding a breach of the agreement, failed to give effect to two key provisions in the agreement. First, is a commitment to place Complainant in “the next [WG]-2610, first line supervisor, position that becomes available within the 402 EMXG.” Second, is the provision, which states that “[t]his action will be completed no later than 12 months from the effective date of this agreement.” The Agency asserts that when both of these provisions are read together, the plain meaning of the paragraph means that the Agency was only obligated to place Complainant in the next WG-2610, first line supervisor position that became available within 12 months from the effective date of the agreement. The Agency asserts that the Commission’s decision was contrary to the parties’ expressed intention of limiting the Agency’s obligation to WG-2610, first line supervisor positions that are available within the allotted 12-month period and rendered useless the words, “first available.” The Agency further asserts that the Commission improperly “interpret[ed] the two key provisions as requiring the Agency to place [Complainant] in a position within [12] months” and/or create a position for Complainant within 12 months of the agreement, even if no such position became available. Finally, the Agency cites to Ingram v. Gen. Servs. Admin., EEOC Request No. 05880565 (June 14, 1988), for the proposition that an agreement made in good faith is valid and cannot be set aside simply because one of the parties made a poor bargain. By way of background, the complainant and the agency in Ingram entered into an agreement to give priority hiring consideration to complainant for a period of 12 months. Both complainant and the agency “mutually anticipated” that the agency would be able to perform within the designated period. However, due to an unanticipated hiring freeze that came into effect just two months after the agreement, the complainant never received priority consideration as promised in the agreement. While the Commission initially ruled in favor of the agency on the grounds that the hiring freeze was unbeknownst to the agency,4 on reconsideration, the Commission concluded that “the freeze resulted in such an inadequacy of consideration as to shock [the] conscience and that the circumstances are such as to render it inequitable to allow the agreement to stand.” The Agency here distinguishes Ingram, EEOC Request No. 05880565, from the instant case and argues the agreement should stand, as “there was no impossibility of performance” because the Agency did in fact perform and that the agreement is not the type to shock the conscience. 4 See Ingram v. Gen. Servs. Admin., EEOC Appeal No. 01880957 (Mar. 9, 1988). 2021002392 4 Upon review, we find that the Agency’s request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is our decision to deny the request. Having reviewed the prior decision and the entire record, we find that our prior decision properly considered and rejected the Agency’s arguments regarding the interpretation of the two key provisions in the agreement. While we agree with the Agency that the first sentence of paragraph 2 of the agreement obliges the Agency to place Complainant in the next available WG-2610-12, first line supervisor position, we note that the first sentence of paragraph 2 is modified by the second sentence, which unequivocally commits the Agency to completing “[t]his action… no later than 12 months from the effective date of this agreement.” In applying the ordinary rules of contract construction, we agree with the prior decision that the Agency’s deliberate choice of words, manifested an intent to assure Complainant that the Agency would prioritize her placement (i.e., next available) and would do so “no later than 12 months from the effective date of the agreement.” Our analysis does not end there. In our prior decision, we found that the Agency’s non- performance during the allotted period was excused under to the impossibility of performance doctrine. Under this doctrine, where certain circumstances arise after execution of the contract, making it “impossible” to perform a provision in a settlement agreement, the non-performance may be excused. See Flemon v. U.S. Dep’t of Agric., EEOC Request No. 05880291 (Aug. 22, 1988); see also East Capitol View Cmty. Dev., Inc. v. Robinson, 941 A.2d. 1036, 1040 (D.C. 2008). Ordinarily, the agency has the burden of establishing this defense. Id. However, in this case, the Agency expressly disavows application of the doctrine and claims that it did in fact comply with the terms of the agreement but was thwarted by budget cuts. Ultimately, we find this argument to be a distinction without a difference. The bottom line remains that Complainant was not placed in the promised position within the allotted period due to budget cuts. Lastly, we considered the Agency’s contention that the Commission should not have extended the Agency’s obligation beyond the 12-month period, as the facts in this case are distinguishable from Ingram, EEOC Request No. 05880565; however, we find that Ingram actually compels us to affirm our prior decision. Much like the complainant in Ingram, the Complainant in this case entered into a time limited agreement with the Agency. Within three months of the agreement,5 the Agency reduced funding for Complainant’s component, which resulted in cuts to staffing. Due to these cuts, the Agency was unable to place Complainant in a WG-2610-12, first line supervisor position within 12 months of the agreement. While the Agency argues that the parties in this case, unlike Ingram, did not “mutually anticipate” satisfaction of the agreement within the allotted time, as noted above, the Agency expressly agreed to place Complainant in the next available WG-2610-12, first line supervisor position within 12 months of the agreement (i.e., “This action will be completed no later than 12 months from the effective date of this agreement [emphasis added].”). Given the Agency’s unequivocal promise, we find the Agency’s argument that there was no mutual anticipation to be unavailing. 5 Though the record suggests that the Agency reduced the 402 EMXG’s budget in June 2019, approximately one month prior to the effective date of the agreement, we note that our prior decision found that the budget cuts occurred after the effective date of the agreement. 2021002392 5 Like Ingram, we conclude that the budget cuts “resulted in such an inadequacy of consideration as to shock [the] conscience and that the circumstances are such as to render it inequitable to allow the agreement to stand.” Therefore, we find that our prior decision properly imposed an obligation on the Agency to perform in accordance with the agreement, even after the allotted time period. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Based on the foregoing, we conclude that the Agency cannot meet this standard. CONCLUSION After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2021000639 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency is ordered to place Complainant in the next available WG-2610-12 first line supervisor position that becomes available within the 402 EMXG in compliance with the terms of the July 20, 2019 settlement agreement. Once Complainant has been placed in the next available first line supervisor position as described above, the Agency shall, within ninety (90) days of the promotion, pay Complainant back-pay covering the difference between her current pay as an Electronic Integrated Systems Mechanic and the pay she would have received as a supervisor had she been promoted into the November 2, 2020, WG 2610-12 Electronic Integrated Systems Mechanic Supervisor position at 402 EMXG. The Agency shall use the date the current incumbent of that position first began work in that position as its starting point. ATTORNEY’S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 2021002392 6 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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. 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. 2021002392 7 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 December 14, 2021 Date