[Redacted], Diane D., 1 Complainant,v.John E Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal Nos. 2021000665, 2021001277 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane D.,1 Complainant, v. John E Whitley, Acting Secretary, Department of the Army, Agency. Appeal Nos. 2021000665 & 2021001277 Hearing No. 450202000076X Agency No. ARBLISS17APR01429 DECISION Complainant contacted the Equal Employment Opportunity Commission (“EEOC” or “Commission”) alleging that the Agency was not in compliance with the terms of a settlement agreement resolving her EEO complaint. 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 an Office Automation Assistant, GS-05, in the Orthopedics Clinic of the William Beaumont Army Medical Center Department of Orthopedics, in Fort Bliss, Texas. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process and file a Formal Complaint. After investigating the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (“AJ”). 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. 2021000665 & 2021001277 2 Complainant timely requested a hearing. However, after participating in mediation with the Agency, Complainant opted to resolve the matter by entering into a negotiated settlement agreement (“NSA”) with the Agency on July 29, 2020. In accordance with the NSA, the assigned AJ dismissed Complainant’s EEO complaint with prejudice. On September 28, 2020, Complainant notified the Agency in writing that it was in breach of the NSA and requested that her complaint be reinstated. Complainant’s breach allegation challenges whether the Agency entered and performed its obligations under the NSA in good faith, and argues that the Agency failed to comply with Provision 2(C), which states: [The] Agency shall assist Complainant and Attorneys who represent her in facilitation of documents required to apply for a medical retirement from Federal Service. [The] Agency does not guarantee such approval will be granted by Office of Personnel Management (“OPM”). On October 3, 2020, Complainant submitted the same breach claim to the Commission, well before the Agency’s 35-day time limit to respond under 29 C.F.R. § 1614.504, and in violation of the clear instructions provided in the AJ’s dismissal order. The Agency cured Complainant’s premature appeal submission by submitting an opposition brief to the Commission articulating its position that it did not breach the NSA as alleged. Therefore, we will proceed as though the Agency’s opposition brief is its final decision, and Complainant’s prior and subsequent submissions to the Commission on this matter are an appeal of this decision.2 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). 2 Complainant’s initial appeal was docketed as Appeal No. 2021000665. Her responses to the Agency’s brief were docketed as Appeal No. 2021001277. The appeals are being consolidated in this decision. 2021000665 & 2021001277 3 In its response to Complainant’s breach claim, the Agency provided evidence that it facilitated documents required to apply for a medical retirement from Federal Service, in accordance with Provision 2(C). Specifically, the Agency provided Complainant with a completed Retirement Package dated August 27, 2020 and instructions to file it with OPM. Under Provision 2(C), the Agency is obligated to facilitate “documents required to apply for a medical retirement from Federal Service,” which entails completing a “Retirement Packet,” for OPM to base its determination on whether Complainant qualifies for disability retirement benefits. Both the Agency and Complainant were responsible for completing portions of a Retirement Application SF 3112B, including a supervisor’s statement, to include in the Retirement Packet. Misrepresentation/Bad Faith The Commission has previously found that bad faith in negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Security 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. See Nemirow v. Dep’t of the Army, EEOC Appeal No. 01930062 (Dec. 8, 1992). Complainant contends that she entered the NSA “under the false pretense that information had been completed and submitted to the proper agency authorities to process [her] retirement.” She further states that she would “never” have entered the NSA had this not been the case. We find, however, that the record contains no evidence indicating that Complainant’s decision to enter the NSA, made with the guidance of legal counsel, resulted from being misled, or that the Agency acted in bad faith when it entered the NSA. If Complainant expected the Agency “to complete and submit information to the proper agency authorities” prior to her entering the NSA, such an interpretation should have been reduced to writing as part of the NSA, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. Gen. Servs. 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. Servs. Admin., EEOC Request No. 05880565 (June 14, 1988). Collateral Attack The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another administrative proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (Jul. 30, 1998) (other citations omitted). Such administrative proceedings include those related to processing disability retirement benefits through the Office of Personnel Management (“OPM”). See Dixon v. United States Postal Serv., EEOC Appeal No. 0120080278 (Feb. 4, 2010) citing Walker v. United States Postal Serv., EEOC Appeal No. 01A20425 (Apr. 3, 2021000665 & 2021001277 4 2002), see also, Foulke v. United States Postal Serv., EEOC Appeal No. 0120083962 (Mar. 15, 2010) (the proper forum for the complainant to raise his dissatisfaction with the processing of his disability retirement with OPM is within the OPM disability retirement process). Allegations that an agency supplied OPM with false information on disability retirement paperwork constitute a collateral attack because the content of the retirement package is part of the OPM disability retirement adjudicatory process. See Scruggs v. United States Postal Serv., EEOC Appeal No. 01A00217 (Mar. 9, 2000). We have previously explained that in such a situation, the complainant “cannot obtain a remedy from the EEO process for the Agency’s alleged wrongdoing in the OPM process.” Scruggs citing Moreno v. Dep’t of the Treas., EEOC Request No. 05940139 (Oct. 28, 1994). For example, in Jacki A. v. Department of the Treasury, we determined that the complainant attempted to lodge an impermissible collateral attack on another administrative proceeding when she alleged that the agency’s statements on her retirement application caused OPM to determine that she was not disabled within the meaning of its disability retirement requirements and reject her application. EEOC Appeal No. 0120162367 (Apr. 24, 2017). Analogous and also applicable to the instant situation are allegations that an agency mishandled the processing of a complainant’s disability claim with the Department of Labor’s Office of Workers' Compensation Programs (“OWCP”), which are impermissible attempts to lodge a collateral attack. See Hogan v. Dep’t of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). For example, in Bell v. Department of Transportation, the complainant’s allegation that the agency submitted records containing incomplete and falsified information to the OWCP in relation to her claim was determined to be an attempt to lodge a collateral attack. EEOC Appeal No. 01991806 (Jan. 11, 2001), see also Hogan (allegations that agency officials provided misleading statements to OWCP constitute a collateral attack on OWCP processes). Complainant argues that the Agency’s August 27, 2020 completed Retirement Package is evidence of breach, not compliance, with Provision 2(C). Specifically, she alleges that the Retirement Package contains false statements, such as incorrectly identifying her supervisor (“S1”) and failing to properly classify her leave and separation from the Agency. She also questions the lack of information about her disability and medical conditions in the Retirement Package specifically intended for disability retirement. Complainant also alleges that when she inquired about these matters, the Agency would not provide new information and refused to implement her requested corrections, insinuating that to do so would be asking it to “lie.” In addition to challenging the content the Agency provided in the Retirement Package, Complainant alleges that the Agency substantially delayed its processing. She alleges that S1, motivated by retaliation, having been named in Complainant’s underlying EEO complaint, blocked and delayed her completed retirement packages from reaching OPM. Complainant describes her vigorous attempts to reach S1 and the management officials responsible for submitting her retirement package to OPM for five months without a response, then contacting OPM to learn that it had no record of her Retirement Package. Complainant notes that by naming S1 as her supervisor, the Agency has forced her to interact with her former harasser in order to obtain her Retirement Paperwork, which caused her tremendous stress. 2021000665 & 2021001277 5 Consistent with Commission precedent, Complainant’s breach allegations constitute a collateral attack on another administrative process because they all concern the processing of her disability retirement package, which is processed through OPM. Even though Complainant’s allegations relate to a provision of an NSA she entered into with the Agency, and the alleged breach concerns the actions of her alleged harasser, all of the issues she raises are ultimately tied to an OPM administrative process. The proper forum for Complainant to raise her challenges to the processing of her disability retirement claim is with OPM. We find Complainant is unable to establish breach, given that she failed to provide evidence of bad faith, and her remaining breach allegations are an impermissible attempt to lodge a collateral attack on another administrative process beyond the purview of the EEOC. As Complainant is not the prevailing party, she is not entitled to attorney’s fees. 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. 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. 2021000665 & 2021001277 6 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. 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. 2021000665 & 2021001277 7 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 2, 2021 Date