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

Equal Employment Opportunity Commission

Mar 3, 2022

Appeal No. 2022000242 (E.E.O.C. Mar. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danial B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000242 EEOC Hearing Nos. 570-2016-00946X; 570-2019-00206X; and 570-2019-01332X Agency Nos. 20DR-00SB-20151033858; 20DR-00SB-2018100071; and 20DR-00SB- 20181106230 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated October 1, 2021, finding that it was in compliance with the terms of a May 26, 2020, settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Director of Acquisition Support, GS-15, at the Agency’s Office of Small and Disadvantaged Business Utilization in Washington, D.C. On May 26, 2020, Complainant and the Agency entered into a settlement agreement to resolve a variety of matters that had been pursued through the EEO complaint process. In pertinent part, the May 26, 2020 settlement agreement included the following provision: Provision d. In the event that Executive Order 13839, or Section 5 thereof, is repealed while Complainant is an employee of the Agency and the Agency has control of his eOPF, the Agency shall remove the suspension, effective September 1 This case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. 2022000242 2 17-23, 2017, from the Complainant’s eOPF. The Agency’s performance of its obligation to remove the suspension from the eOPF is contingent on the Complainant’s written notice of the repeal of Executive Order 13819,2 or Section 5 thereof, to his supervisors and Office of General Counsel. The Agency shall have no obligation to remove the suspension from the eOPF if Executive Order 13839, or Section 5 thereof, is not repealed; or if the Complainant is no longer an Agency employee and/or the Agency does not have control over the Complainant’s eOPF at the time of the repeal of Executive Order 13839 or Section 5 thereof. By letter on January 28, 2021, Complainant, through counsel, informed the Agency, as required by the terms of the settlement agreement, that Executive Order 13839 had been revoked on January 22, 2021 by Executive Order 14003, and requested that the Agency remove the suspension from Complainant’s eOFP. However, on April 12, 2021, the Agency responded and informed Complainant that his suspension could not be removed because the Office of Personnel Management (OPM) had not rescinded its regulations implementing Executive Order 13839. Thereafter, on April 13, 2021, Complainant, through counsel, sent a letter to the Agency alleging breach of the May 26, 2020 settlement agreement. Specifically, Complainant argued that the Agency violated provision (d) of the agreement when it failed to remove the suspension from Complainant’s eOPF after he informed the Agency that Executive Order 13839 had been rescinded. In its September 29, 2021 decision, the Agency found no breach of the May 26, 2020 settlement agreement. The Agency determined that the OPM regulations prohibiting changes to a personnel record by way of a settlement agreement still remained in effect despite revocation of Executive Order 13839. Specifically, the Agency noted that Executive Order 14003 did not revoke the regulations at 5 C.F.R. §§ 432.108 and 752.203(h)3 which were promulgated by OPM as a result of Executive Order 13839. Therefore, the Agency determined that Complainant’s suspension could not be removed from his eOPF, and consequently, the Agency had not breached the terms of the settlement agreement. The instant appeal followed. On appeal, Complainant, through counsel, argues that the Agency has continued to breach the settlement agreement in its refusal to remove Complainant’s suspension. 2 The record supports that this is a typographical error and Executive Order 13839 is the order at issue. 3 These regulations prevent agencies from entering settlement agreements that would erase, remove, alter, or withhold any information related to an employee’s performance or conduct from an employee’s official personnel record/folder or the employee’s employment performance file, 2022000242 3 Complainant reasons that the scope of the settlement agreement only includes a requirement for the revocation of Executive Order 13839, not the revocation of OPM’s regulations implementing Executive Order 13839. Nevertheless, Complainant asserts that OPM’s guidance on Executive Order 14003 clearly supports a determination that the Agency has authority to remove Complainant’s suspension. Specifically, Complainant notes that on March 5, 2021, OPM issued Guidance for Implementation of Executive Order 14003 - Protecting the Federal Workforce (OPM Guidance), which stated that, “Agencies shall immediately stop implementation of EO 13839.” Specific to collective bargaining agreements, Complainant notes that the OPM Guidance states that, “Agency actions to implement any other requirements of EO 13839 must cease immediately.” Therefore, Complainant asserts that the Agency breached the terms of the settlement agreement when it failed to remove Complainant’s suspension. 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). Here, the Agency asserts that it is unable to comply with provision (d) because while Executive Order 13839 was revoked by Executive Order 14003, the OPM regulations implementing Executive Order 13839 have not been rescinded by OPM. For clarity, we provide a brief background on both executive orders. On May 25, 2018, the President of the United States signed Executive Order 13839, “Executive Order Promotion Accountability and Streamlining Removal Procedures Consistent With Merit System Principles.” The Order provides, in pertinent part, that: Sec. 5. Ensuring Integrity of Personnel File. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee's performance or conduct in that employee's official personnel records, including an employee's official personnel record, including an employee's 2022000242 4 Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action. However, on January 22, 2021, the President of the United States signed Executive Order 14003, “Protecting the Federal Workforce.” The Order provides, in pertinent part, that: Sec. 3. Revocation of Certain Presidential and Regulatory Actions. (c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles), is hereby revoked. Here, Provision (d) of the instant settlement agreement requires the Agency to remove Complainant’s suspension from his eOPF following written notice of a revocation of Executive Order 13839. Complainant asserts that Executive Order 13839 has been revoked by Executive Order 14003, and therefore, the Agency was required to remove the suspension. However, the Agency argues that Executive 14003 failed to revoke the implementing regulations, 5 C.F.R. §§ 432.108 and 752.203(h), promulgated by OPM as a result of Executive Order 13839, and consequently, those regulations remain in effect and prohibit the removal of Complainant’s suspension from his eOPF. The Agency notes that the March 5, 2021 OPM Guidance states that, pursuant to sections 3(e)(vii) and f of Executive Order 14003, OPM is required to: review, identify, revised, and rescind OPM actions arising from the final rule entitled ‘Probation on Initial Appointment to Competitive Position, Performance- Based Reduction in Grade, and Removal Actions and Adverse Actions’ published in the Federal Register on October 16, 2020 and effective on November 16, 2020. Although the OPM Guidance further indicates that OPM is undergoing proposed rule changes, Complainant notes that OPM Guidance further instructs that “agencies should not delay in implementing the requirements of Section 3(e) of EO 14003 as it relates to any changes to agency policies made as a result of OPM’s regulations,” and agencies “must cease immediately” any actions implementing Executive Order 13839. However, we will not make any determination on whether or not Executive Order 14003 applies to this settlement agreement. As such, we also need not decide how OPM’s Interpretive Guidance on Executive Order 14003 applies to this settlement agreement. Based on the Agency assertion that it cannot comply with provision (d) until the relevant OPM regulations are changed, we find that the appropriate action is to provide Complainant with the opportunity to have the underlying complaint reinstated for continued processing, as more fully addressed in our Order below. Accordingly, we REMAND the matter to the Agency for actions in accordance with the ORDER below. 2022000242 5 ORDER The Agency is ordered to take the following actions: 1. Within thirty (30) calendar days of the date of this decision, the Agency is ordered to notify Complainant of the option to either: (1) return to the status quo prior to the signing of the May 27, 2020 settlement agreement and have his underlying complaint reinstated for processing, or (2) obtain specific performance of the agreement as reformed to exclude provision (d) until such time as the relevant OPM regulations are changed. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency which option he wishes to pursue. Complainant shall be notified that, in order to return to the status quo ante, he must return any monetary benefits (if applicable) or other benefits received pursuant to the agreement. 2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand, and the Agency will abide by all terms, except for provision (d) of the agreement until such time as the relevant OPM regulations are changed. 3. If Complainant elects to reinstate the underlying EEO complaint, the processing of the EEO complaint will resume from the point processing ceased pursuant to the procedures detailed in 29 C.F.R. Part 1614. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 2022000242 6 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. 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/he 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. 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. 2022000242 7 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2022000242 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 March 3, 2022 Date