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

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000639 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathy V.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021000639 Agency No. 9R1M1900705 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 11, 2020, 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 an Electronic Integrated Systems Mechanic at the Agency’s Electronics Maintenance Group facility (402 EMXG) at 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 and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, 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. 2021000639 2 (2) The Agency agrees to place [Complainant] in the next WS-2610-12, 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. By letter to the Agency dated August 10, 2020, Complainant alleged that the Agency was in breach of the settlement agreement (Agreement). In its September 11, 2020 FAD, the Agency found that due to budget cuts, no positions became available during the twelve-month period following the signing of the Agreement, and hence the Agency had not breached the Agreement when it failed to promote Complainant. The instant appeal followed. 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. See Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). In the instant case we are unpersuaded by the Agency’s argument that the Agreement only required it to perform should a vacancy become available within twelve months of the signing of the Agreement. On the contrary we find that the clause stating that the action “will be completed no later than 12 months from the effective date of this agreement” commits the Agency to comply with the terms of the Agreement within twelve months. The Agency’s argument that unforeseen external events, in the form of budget cuts, prevented the Agency from complying within the agreed-upon time frame, raises the issue of “impossibility of performance.” 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. Department of Agriculture, EEOC Request No. 05880291 (August 22, 1988V see also East Capitol View Cmty. Dev., Inc. v. Robinson, 941 A.2d. 1036, 1040 (D.C. 2008). We find that the doctrine of impossibility of performance is applicable in the instant case, and that the Agency’s failure to comply with the terms of the Agreement within the twelve-month period mandated by the Agreement does not constitute a breach. 2021000639 3 However, we further find that the doctrine does not mean that the Agency is relieved of its obligation to place Complainant in the next WS-2610-12 first line supervisor position that becomes available within the 402 EMXG. On the contrary, that obligation is still in effect and has not been complied with. Complainant has produced a copy of a job announcement for a WS 2610-12 Electronic Integrated Systems Mechanic Supervisor position at 402 EMXG with a posting date of November 2, 2020. On appeal, the Agency admits it did not place Complainant in this position because it believed that the Agreement only required it to act if a position became available during the twelve-month period following the signing of the Agreement, and the WS 2610-12 Electronic Integrated Systems Mechanic Supervisor position only became available after the twelve-month period was over. As noted above, we find that the Agency’s interpretation is erroneous and by failing to place Complainant in the WS 2610-12 Electronic Integrated Systems Mechanic Supervisor position, we find that the Agency breached the Agreement, notwithstanding the fact that the position only became available after the end of the twelve-month period referenced in the Agreement. Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the underlying complaint or 2) order specific performance. In this case, Complainant has requested specific performance. Therefore, on remand, we direct the Agency to specifically enforce the terms of the Agreement by placing Complainant in the next available WS-2610-12 first line supervisor position that becomes available within the 402 EMXG. We further find that due to the Agency’s breach of its obligations under the settlement agreement, Complainant is entitled to back pay to cover the difference in salary between her current position and a supervisory position because had the Agency complied with the Agreement, Complainant would have been receiving supervisory- level pay. We therefore order that Complainant receive back pay from the date the selectee for the WS 2610-12 Electronic Integrated Systems Mechanic Supervisor position first began working in that position to the date Complainant receives her promotion to a supervisory position. CONCLUSION Because we find that the Agency breached the Agreement, we REVERSE the FAD and we REMAND the matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to place Complainant in the next available WS-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, WS 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. 2021000639 4 ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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. 2021000639 5 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). 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. 2021000639 6 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 February 9, 2021 Date