[Redacted], Chau B., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2022002859 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chau B.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022002859 Agency No. HQ-19-0462-SSA DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a May 5, 2022 final Agency decision (“FAD”) finding that it was in compliance with the terms of the settlement agreement into which the parties entered. The Commission accepts the appeal. 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 was employed by the Agency as the Director, Allegation Management and Fugitive Enforcement, GS-15, in the Office of Communications and Resource Management, within the Agency’s Office of the Inspector General (“OIG”) at Agency Headquarters in Baltimore, Maryland. 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. 2022002859 2 On April 10, 2020, Complainant and the Agency entered into a negotiated settlement agreement (“NSA” or “Agreement”) to resolve an EEO complaint in which Complainant alleged discrimination by the Agency.2 Relevant to the instant appeal are Paragraphs 3(b) and 16 of the NSA, which state: (3)(b) The Agency agrees, that within 30 days of the effective date of this agreement, it will purge Complainant's SSA-7B Extension File (“SSA-7B File”) of any and all copies of the Decision on Proposed 7-day Suspension, dated January 18, 2019. . . . (16) Irrespective of any provisions of this Agreement, the parties agree that no provision of this Agreement shall require expungement or modifications of files maintained by the Agency’s Office of the Counsel to the Inspector General, Office of Resource Management, or [Complainant’s] Electronic Official Personnel Folder (“e-OPF”). On January 25, 2022, Complainant wrote to the Agency alleging that it was in breach of Paragraph 3(b) of the NSA. Complainant, who retired in December 2020, explained that she became aware of the alleged breach on January 4, 2022, when she learned that OIG denied her application for Retired Law Enforcement Credentials under the Law Enforcement Officer Safety Act (“LEOSA”). The OIG’s stated reason for the denial was “derogatory information about [Complainant’s] conduct in [OIG’s] records.” The denial letter did not provide further details regarding the information. Complainant believed the “derogatory information” was a reference to the January 18, 2019 Letter of Suspension in Paragraph 3(b). In its decision, the Agency concluded it did not breach the terms in Paragraph 3(b) of the Agreement, but fully complied with the provision when it expunged the Letter of Suspension from Complainant’s SSA-7B file. The Agency noted that the OIG committee responsible for reviewing applications for LEOSA credentials has access to other records, including e-OPFs. Complainant’s e-OPF would have reflected that she served the suspension referenced in the January 18, 2019 Letter. Complainant filed the instant appeal. 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). 2 EEOC Hearing No. 531202000072X (Apr. 20, 2020) (dismissing Complainant’s hearing request, citing the April 20, 2020 NSA). 2022002859 3 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 Agency properly found that nothing in the plain language of the NSA obligates it to expunge the Letter of Suspension from any of Complainant’s records other than her SSA-7B. Additionally, the Agency demonstrated that it has fully complied with Paragraph 2(b) with evidence in the form of a June 18, 2020 confirmation email and contemporaneous screen shots of the contents of Complainant’s SSA-7B. Moreover, Paragraph 16 of the NSA affirmatively establishes that the Agency is not “required” to expunge the Letter of Suspension from Complainant’s e-OPF. On appeal, Complainant implicitly acknowledges the Agency’s compliance with Paragraph 2(b) and Paragraph 16 by asking the Commission to ensure that the Agency “honors the spirit of the settlement agreement.” However, she also argues that the Agency “misled” her about whether it would still consider her suspension as part of her record once she entered the NSA. 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 (Jun. 12, 1997), Dupuich v. Dep’t of the Army, EEOC Appeal No. 0120073901 (Nov. 2, 2007). Here, Complainant has not established bad faith because the evidence, including emails provided by Complainant, illustrates that she entered the NSA knowingly. See, e.g. Beth G. v. Dep’t of Justice, EEOC Appeal No. 0120170315 (Mar. 10, 2017) (no bad faith found where Complainant entered settlement agreement providing T&A training, even though T&A was no longer one of her job duties, because Agency informed her of removal of duty before agreement executed), distinguishing Complainant v. Nat’l Endowment for the Arts, EEOC Appeal No. 0120133264 (Feb. 4, 2014) (agency negotiated in bad faith where, during negotiations, the complainant’s manager promised to take actions requested by the complainant, while knowing that the complainant’s employment would be terminated two weeks later). Here, at the time of the settlement negotiations, Complainant knew that her e-OPF contained documentation reflecting that she served the referenced suspension, as well as the Agency’s stated reason for upholding the suspension. Email correspondence reflects that the Agency explained to Complainant that this documentation would not be expunged from her record, and that the Agency provided her with the relevant language from EO 13839. 2022002859 4 Moreover, the record is devoid of evidence to indicate that the Agency was aware, during negotiations, that EO 13839 would be rescinded. See Joshua F. v. Dep’t of the Air Force, EEOC Appeal No. 0120161062 (Apr. 19, 2016) (no bad faith found where, per agreement, the complainant was laterally transferred to a position that was later eliminated because there was no evidence the Agency was aware of elimination when the parties entered the agreement). Likewise, there is no evidence that during the negotiations, the Agency was aware that its policies and procedures would be revised to explicitly allow OIG to consider applicants’ e-OPFs and any other available records when assessing applications for LEOSA credentials. Moreover, 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, e.g. Diane D. v. Dep’t of the Army, EEOC Appeal No. 2021000665 (Feb. 2, 2021) (complainant’s assertion that she “never” would have entered agreement if she knew the agency had not submitted her retirement documents, was not supported by evidence that Agency misled Complainant or acted in bad faith) citing Carter v. Dep’t of the Army, EEOC Appeal No. 01985009 (July 2, 1999). In the alternative, Complainant alleges that the Agency’s actions concerning her LEOSA credentials constitute reprisal. 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. All of the events pertaining to LEOSA credentials occurred after the NSA was executed, so they cannot be addressed as part of Complainant’s breach claim. We also note that the NSA does not make any reference to the Agency’s obligations concerning LEOSA credentials. If Complainant wishes to have these new allegations of reprisal processed as a separate complaint of discrimination, she should contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. CONCLUSION Accordingly, the Agency’s finding that no breach occurred is AFFIRMED. 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. 2022002859 5 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 (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. 2022002859 6 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 11, 2022 Date