[Redacted], Chantelle M., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022002210 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chantelle M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2022002210 Agency No. NGAE-0022-2017 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated March 10, 2022, finding that it was in compliance with the terms of the September 30, 2021, 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. At the time of events giving rise to this complaint, Complainant worked at the Agency’s facility in Charlottesville, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant filed two EEO complaints alleging discrimination. On September 30, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matters. The settlement agreement provided, in pertinent part, that the Agency would, in Paragraph 2: A. Assign [Complainant] to the position of [Agency] Mission Manager for Global Issues, as soon as practicable after the execution of this agreement, but no later than 15 calendar days. The [Agency] Mission Manager for Global Issues position is fully funded at the [Defense Intelligence Senior Executive Service (DISES)] Tier 2 level. B. Select and approve [Complainant] to attend the Capstone Executive Development Program. The Agency shall take all reasonable measures to 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. 2022002210 2 place [Complainant] into the Capstone training program with a start date on 31 January 2022. In the event the Agency cannot place her into the Capstone Program commencing on 31 January 2022, the Agency shall place her into the next available Capstone program. On October 22, 2021, Complainant’s counsel (Counsel) contacted the Agency regarding concerns to the position relevant in 2(A). Specifically, Counsel noted that the position description for the position listed it as a Tier 1, and not as a Tier 2, per the agreement. The Agency denied that the agreement intended for the position to be listed as a Tier 2 position. Instead, Agency officials asserted that 2(A) was negotiated to retain Complainant’s DISES, Tier 2 pay. The Agency and Counsel engaged in attempts to resolve Complainant’s concerns. By letter to the Agency dated January 18, 2022, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency misrepresented the Mission Manager position as a DISES Tier 2 position when it was a Defense Intelligence Senior Leader (DISL), Tier 1 position. Additionally, Complainant alleged that the Agency had no authority to place Complainant in the Capstone Program (Program), and therefore 2(B) was negotiated in bad faith. Specifically, that the Agency could not control who entered the Program and could only select/approve Agency employee placement in the Program. Complainant asserted that Capstone Program officials had the ultimate control over participants. In its March 10, 2022, final determination, the Agency concluded that it did not breach the settlement agreement. The Agency determined that Complainant’s breach allegation regarding 2(A) is untimely. The Agency asserted that per 2(A), Complainant was placed into the Mission Manager position within 15 days of the September 30, 2021, settlement agreement. Despite this, Complainant did not formally allege breach until January 18, 2022, beyond the 30-day time frame. Nonetheless, the Agency addressed the matter and ultimately determined that it satisfied the terms of the Agreement. The Agency asserted that the provision did not guarantee the position would be listed as a DISES position, but that it would be funded at Complainant’s DISES, Tier 2 level. This was to ensure that she would retain her status and salary as a DISES, Tier 2 employee. The Agency also determined that there was no breach of 2(B) and that further, any claim was premature. The Agency stated that at the time of the settlement agreement, civilians were still eligible to participate. However, the COVID-19 pandemic restricted participants to only active- duty military personnel. The Agency rejected Complainant’s contention that it negotiated the term in bad faith and asserted that while it could not control the non-active-duty ban, it had control over who it placed in the Capstone Program from within the Agency. The Agency noted that it confirmed with Capstone officials that Complainant was the Agency’s first placement for when the Capstone Program reopened. 2022002210 3 CONTENTIONS ON APPEAL Complainant asserts that 2(A) and 2(B) were breached. Regarding timeliness, Complainant states that she became aware of the DISL classification on October 21, 2021, and Counsel contacted the Agency the next day. Complainant argues that this makes her complaint timely. Concerning the position in 2(A), Complainant acknowledges that she was timely placed in the Mission Manager position and paid at the DISES, Tier 2 level. However, Complainant asserts that the agreement was for the Mission Manager position to be listed as a DISES, Tier 2 position, and the position was actually a DISL, Tier 1 position. Complainant asserts that the Agency was aware that negotiations meant she was seeking to retain both her status and pay as a DISES, Tier 2 employee. Concerning the Capstone Program in 2(B), Complainant asserts that the Agency never had authority to place individuals in the Program and therefore negotiated the term in bad faith. Complainant notes that even if the COVID-19 pandemic had not occurred, the Capstone Program officials could have denied Complainant’s placement for any number of reasons. Complainant argues that she was led by Agency officials to believe that the Agency had full control of who was placed in the Program. Additionally, Complainant asserts her belief that she would be placed in the January 2022 Program was a decisive factor in her settling the matter. Complainant is now requesting a determination that the Agency failed to comply with the settlement agreement; reimbursement of attorney’s fees and costs associated with seeking compliance; modification of the Mission Manager position to a DISES, Tier 2 position; and if participation in the Capstone Program is not possible, then sending Complainant to a mutually agreeable and demonstrably equivalent Capstone Program course. Alternatively, Complainant requests reinstatement of her complaint. In its response, the Agency states that the plain language of 2(A) only promises Complainant that the new position would be fully funded at the DISES, Tier 2 level, which it is. The Agency argues that the agreement did not promise that the position itself would be a DISES, Tier 2 position. The Agency notes that Complainant is also still a DISES, Tier 2 employee. Regarding 2(B), the Agency asserts that the claim is premature. The Agency argues that it could not have foreseen the unintended consequences of the COVID-19 pandemic delaying non-active military duty participation. The Agency asserts that the agreement did not guarantee Complainant’s placement into the Capstone Program by a certain date or certain year. Merely, that Complainant would be selected and approved to attend the next available Capstone Program if the Agency could not place her in the January 31, 2022, Program. The Agency states that based on the COVID-19 restrictions, Complainant was placed first on the Agency’s list of individuals approved to attend and the Agency is therefore not in breach. 2022002210 4 ANALYSIS AND FINDINGS Timeliness EEOC Regulation 29 C.F.R. 1614.504(a) provides that if complainant believes that the agency has failed to comply with the terms of a settlement agreement, she may request that the terms of the settlement agreement be specifically implemented, or, alternatively, that the complaint be reinstated for further processing. Such a request, however, must be made within 30 days of the date on which the complainant knew, or should have known of the claimed noncompliance. Here, the record indicates that on October 21, 2021, Complainant obtained information that led her to believe of a potential breach of the September 30, 2021, settlement agreement. The next day, Counsel informed the Agency of Complainant’s concerns. Based on this timeline, we find that Complainant timely made her request. Claim of Breach 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 Vet. Aff., 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. U.S. 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). In the instant case, we find that the Agency is in compliance with the September 30, 2021, settlement agreement. Concerning 2(A), the record demonstrated that Complainant was timely placed into the Mission Manager position and retained her status and pay as a DISES, Tier 2 employee. Complainant asserted that Agency officials were aware of her desire to retain her DISES, Tier 2 status and pay but in a DISES, Tier 2 classified position. Complainant argued that retaining her pay and status but in a DISL, Tier 1 position was contrary to the negotiations. However, the agreement does not specifically indicate that the Mission Manager position would be classified as a DISES, Tier 2 position, only that it would be funded as such. Regarding 2(B), the Agency attempted to place Complainant in the Capstone Program per the agreement. However, the unforeseen circumstances of the COVID-19 pandemic led to the Capstone Program restricting participation to only active-duty military personnel. 2022002210 5 Due to this change, the Agency informed Complainant that she would be placed in the first position available to the Agency as soon as the Program reopens to civilians. Provision 2(B) states that the Agency would select and approve Complainant to attend, and it has done so within the realm of the unexpected restrictions. The Agency also reached out to Capstone officials, who confirmed, that Complainant was the first on the Agency’s list for when the Program lifted COVID-19 restrictions. Therefore, we find that the issue of whether the Agency has breached provision 2(B) is premature. If the Program reopens to civilians and Complainant is not placed in it, then Complainant should raise her claim of breach of the settlement agreement at that time. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. Misrepresentation/Bad Faith The Commission has previously found that bad faith in negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Sec. Admin., EEOC Request No. 05950169 (June 12, 1997), Dupuich v. Dep't of the Army, EEOC Appeal No. 0120073901 (Nov. 2, 2007). Alternately, there are instances when an otherwise valid agreement may be void, voidable, or reform-able due to coercion, misinterpretation, or mistake. Nemirow v. Dep't of the Army, EEOC Appeal No. 01930062 (Dec. 8, 1992). Complainant contends that she entered the agreement under the false pretense that the Mission Manager position would be classified and funded as a DISES, Tier 2 position; and, that the Agency had full control over Capstone Program participants. Complainant asserted that she would have never entered a settlement agreement otherwise. We find, however, that the record contains no evidence indicating that Complainant's decision to enter the agreement, made with the guidance of legal counsel, resulted from being misled, or that the Agency acted in bad faith when it entered the agreement. If Complainant expected the Agency to abide by certain expectations, then prior to her entering the agreement, such interpretations should have been reduced to writing as part of the agreement. In the absence of a writing, such expectations cannot be enforced. See Jenkins-Nye v. Gen. Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). We have previously held that if a settlement agreement is made in good faith and is otherwise valid, it will not be set aside simply because it appears that one of the parties had made a poor bargain. See Carter v. Dep't of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing Ingram v. Gen. Serv. Admin., EEOC Request No. 05880565 (June 14, 1988); see also Diane D., v. Dep’t of the Army, EEOC Appeal 2021000665 (Feb. 2, 2021). CONCLUSION Accordingly, based on a review of the record, the foregoing analysis, as well as arguments and evidence not specifically referenced, we AFFIRM the Agency’s final decision finding no breach of the settlement agreement. 2022002210 6 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. 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). 2022002210 7 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. 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 October 17, 2022 Date