[Redacted], Damion L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 24, 2021

Appeal Nos. 2021003489, and, 2021003520 (E.E.O.C. Aug. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damion L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal Nos. 2021003489 and 2021003520 Agency Nos. 200J-0553-2021102370 and 200J-0506-2011104437 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), regarding two separate final Agency decisions.2 First, Complainant appealed the Agency’s April 23, 2021 final decision, finding no breach of an October 18, 2011 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. Second, Complainant appealed the Agency’s April 27, 2021 final decision dismissing a formal complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND 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 Our records indicate that Complainant filed both appeals on May 4, 2021, which have been identified as EEOC Appeals Nos. 2021003489 and 2021003520. Our records further indicate that Complainant submitted separate appeal briefs addressing each complaint (a settlement breach claim and a procedural dismissal of a formal complaint). The record for both complaints was provided by the Agency under EEOC Appeal No. 2021003489. For efficiency, we consolidate both appeals and will address them both in this decision. 2021003489, 2021003520 2 Complainant worked as a Respiratory Specialist, GS-6, at the Agency’s VA Ann Arbor Healthcare system located in Ann Arbor, Michigan. On August 12, 2011, his employment with the Agency ended following a termination that was meditated to a voluntarily resignation per the terms of an October 18, 2011 settlement agreement (Agency No. 200J-0506-2011104437).3 Subsequently, on February 4, 2021, Complainant alleged breach of the terms of the 2011 settlement agreement. Specifically, Complainant claimed that on January 27, 2021, an Agency attorney produced evidence of his termination during a deposition related to an EEO and MSPB complaint Complainant had filed against the VA John D. Dingell Medical Center located in Detroit, Michigan where Complainant was now employed as a Respiratory Therapist. Thereafter, on March 30, 2021, Complainant also filed an EEO complaint (Agency No. 200J- 0553-2021102370) claiming that he was discriminated against and subjected to a hostile work environment in reprisal for prior EEO activity when, on January 27, 2021, he became aware that documents filed in his appeal to the MSPB contained a unredacted social security number, a document not included in his prior FOIA request, and information that should not have been disclosed per the terms of a 2011 settlement agreement with the Agency. The Agency issued final decisions determining no breach of the October 18, 2011 settlement agreement and dismissing Complainant’s complaint regarding the January 27, 2021 alleged incidents. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Settlement Agreement (Agency No. 200J-0506-2011104437) The October 18, 2011 settlement agreement provided, in pertinent part, that the Agency would conduct the following: 2. The Agency agrees to the following specific terms: A. The Agency agrees to rescind the removal of the Appellant/Complainant that was dated August 11, 2011 and effective August 12, 2011 and convert the action to state that Appellant voluntarily resigned from his position as a Registered Respiratory Therapist, GS-601 at the Ann Arbor VA Healthcare System in Ann Arbor, Michigan. B. The Agency agrees to remove all references of the removal dated August 11, 2011 and effective August 12, 2011 from the Appellant’s/Complainant’s Official Personnel Folder (OPF). Which will instead reflect that the Appellant/Complainant voluntarily resigned. 3 The record indicates that Complainant had also filed a complaint with the Merit Systems Protections Board (MSPB) regarding his termination, Docket No: CH-0752-11-04199-I-1, which was also resolved though the October 18, 2011 settlement agreement. 2021003489, 2021003520 3 C. The Agency agrees to purge any evidence regarding Appellant/Complainant’s August 12, 2011 removal. On February 4, 2021, Complainant alleged that the Agency breached the 2011 settlement agreement. Complainant explained that while working at the VA John D. Dingell Medical as a Respiratory Therapist, he filed an EEO complaint and MSPB appeal against the Agency. In response to his MSPB appeal (MSPB Docket No. CH-1221-20-0549-W-1), Complainant indicated that he was deposed by a VA attorney on January 27, 2021, who produced evidence that he has been previously terminated from the Agency in 2011. Complainant argued that the Agency was required, by the terms of the 2011 settlement agreement, to destroy documents regarding his termination, but failed to do so. On April 23, 2021, the Agency issued a breach of settlement determination and found that there was no breach of the October 18, 2011 settlement agreement, and Complainant appealed. On appeal, Complainant, through counsel, asserts that the Agency failed to remove from his Official Personnel Folder (OPF) references that he was terminated in 2011 and failed to replace the termination references in his OPF to reflect that he voluntarily resigned from the Agency in 2011, consistent with the terms of the October 18, 2011 settlement agreement. 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 find that documentation in the record supports a determination that the Agency complied with the relevant terms of the October 18, 2011 settlement agreement. The record includes a personnel action reflecting a cancellation of Complainant’s termination, effective August 12, 2011, as well as a personnel action reflecting that Complainant resigned from the Agency, effective August 12, 2011. 2021003489, 2021003520 4 Our records indicate that that Complainant filed another MSPB appeal (MSPB Docket No. CH- 0752-15-0099-I-1) on November 18, 2014, and alleged that his 2011 termination was in retaliation for reporting “unethical, illegal and dangerous practices as a whistleblower”.4 In support of his appeal, Complainant provided the MSPB a copy of his 2011 termination which the MSPB maintained as part of its records. Consequently, this document was accessible during the discovery related to Complainant’s pending 2021 MSPB appeal identified as MSPB Docket No. CH-1221-20-0549-W-1. We note that the terms of the October 18, 2011 settlement agreement were only binding on Complainant and the Agency. The MSPB was not a party to this agreement. Therefore, the MSPB was not required to purge any record of Complainant’s 2011 termination and only had access to this document because Complainant voluntarily provided it to the MSPB in support of his appeal with the MSPB. In contrast, the record reflects that the Agency complied with its obligation to remove any references of Complainant’s 2011 termination and replace these references with Complainant’s 2011 resignation. Therefore, we find that the Agency correctly determined that there was no breach of the October 2011 settlement agreement. Procedural Dismissal (Agency No. 200J-0553-2021102370) On February 23, 2021, Complainant initiated EEO Counselor contact.5 Informal efforts at resolution were not successful. On March 30, 2021, Complainant filed a formal complaint claiming that he was discriminated against and subjected to a hostile work environment based on reprisal for prior protected EEO activity when: 1. on January 27, 2021, Complainant learned that a document filed in response to his appeal to the MSPB contained his unredacted social security number; 2. on January 27, 2021, Complainant learned that a document filed in response to his appeal to the MSPB contained a document not provided in response to his prior request for it under the FOIA; and 3. on January 27, 2021, Complainant learned that a document filed in response to his appeal to the MSPB contained information that was not to be released due to a prior (2011) settlement with the Agency. 4 On August 7, 2015, the MSPB issued a decision, Docket No. CH-0752-15-0099-I-1, dismissing Complainant’s appeal for lack of jurisdiction because Complainant waived his appeal rights in the October 2011 settlement agreement. 5 The record indicates that Complainant only claimed, during his initial contact with an EEO Counselor, that he was discriminated based on reprisal for prior protected EEO activity. Consequently, Complainant did not raise a claim of discriminatory harassment during initial EEO counseling. 2021003489, 2021003520 5 On April 27, 2021, the Agency issued a decision dismissing the formal complaint on multiple procedural grounds. First, the Agency dismissed Complainant’s hostile work environment pursuant to 29 C.F.R. § 1614.107(a)(2), as untimely raised before an EEO Counselor. The Agency determined that Complainant initiated EEO Counselor contact on February 23, 2021, but he did not include a hostile work environment claim during EEO counseling and waited to raise this claim in his March 30, 2021 formal complaint which the Agency determined was beyond the 45-day limitation period. Second, the Agency dismissed claims 1 and 2, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that these claims constituted a collateral attack on another forum. Third, the Agency dismissed claim 3, finding that Complainant had properly raised this claim in a February 4, 2021 breach of settlement agreement allegation with the Agency’s Office of Compliance and Policy which is the Agency entity responsible for reviewing breach of settlement claims. On appeal, Complainant only disputes the Agency’s dismissal of claim 2.6 Complainant asserts that during a January 27, 2021 deposition, regarding a MSPB appeal he had filed, an Agency attorney produced a document which Complainant had been informed in a prior FOIA request did not exist. Complainant asserts that the document produced on January 27, 2021, was a sworn and signed July 6, 2018 statement by Complainant denying that he had attempted to sabotage a transport ventilator in the alleged sentinel event. Complainant asserts that he was “falsely informed” that this document did not exist when he requested a copy in his prior FOIA request. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). The essence of claim 2 concerns with a failure to receive a document Complainant requested through the FOIA process which was subsequently produced at another time. Complainant asserted that his delayed receipt of this document denied him due process guaranteed by the 14th Amendment. The proper forum for Complainant to have raised his challenges to actions which occurred during the FOIA process is within that process itself because any remedial relief available to Complainant would be through FOIA process itself. 6 Because Complainant only disputes on appeal the dismissal of claim 2, we need not address the Agency’s dismissal of claims 1 and 3. 2021003489, 2021003520 6 There is no remedial relief available to Complainant on this matter through the EEO complaint process. Therefore, the Agency properly dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim due to lodging a collateral attack on the proceedings of the FOIA process. CONCLUSION The Agency’s April 23, 2021 final decision finding no breach of the October 18, 2011 settlement agreement and the Agency’s 27, 2021 dismissal of an EEO complaint at issue are 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. 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. 2021003489, 2021003520 7 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. 2021003489, 2021003520 8 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 August 24, 2021 Date