[Redacted], Ellan C., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021004399 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellan C.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021004399 Agency No. DON 20-00250-02277 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the final Agency decision (FAD) dated July 16, 2021, finding that it was in compliance with the terms of the 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked at the Agency’s NEXCOM Headquarters in Virginia Beach, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 5, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: c. The Agency agrees to rescind and withdraw all records of disciplinary action and termination from the Complainant’s official personnel file within 21 days of the effective date of this agreement…. In addition, the Agency shall replace Complainant’s performance evaluation with a letter-to-file, which states that during the 2019 performance period, Complainant was rated as fully successful. d. The Agency agrees to reinstate Complainant into a leave without pay (LWOP) status, such that there is no break in service. This status will remain in effect until 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. 2021004399 2 June 30, 2021, unless Complainant resigns earlier. This LWOP status is granted for continuity purposes only. Complainant agrees to discontinue all employee benefits through NEXCOM. These benefits include at a minimum the following: (1) Complainant shall not return to any Navy Exchange Service Command (NEXCOM) facility; (2) Complainant shall not contact any NEXCOM employees in their official capacity, except the points listed in sections 5 a-e.… e. The Agency agrees that [C1] shall provide to Complainant the employment reference letter within 30 days of the effective date of this agreement, or sooner upon Complainant’s request.… If any of the following individuals are contacted by an outside agency about Complainant, they shall refer that agency to C1 and if C1 is no longer employed by NEXCOM, to Human Resources (HR).… Agency Representative shall provide the above listed individuals a signed copy of this document as notice of this requirement. See Settlement Agreement, dated March 5, 2021; Agency Response at 201. On March 16, 2021, Complainant provided a resignation letter effective June 30, 2021. Id. at 242. The relevant people were notified, on March 22, 2021, that, should they be contacted for a reference for Complainant by an outside agency, they should refer the reference seeker to HR. On March 25, 2021, C1 provided a letter of recommendation as specified in the Settlement Agreement. Id. at 258, 253. A series of email communications between Complainant and her prospective receiving agency manager indicated that the Agency did not provide the prospective agency proper employment file documentation, which delayed her employment onboarding date at the new agency. See Complainant Brief at 83-101. Complainant specifically noted that the receiving agency attempted to have the Agency resend the documents and the Agency asserted to have sent the documents. When the receiving agency requested that the Agency resend the documents, the Agency representative allegedly asserted that, “he was unable to open the email he sent so he couldn’t forward it to [the receiving agency] again.” Id. at 101. Complainant alleged that the Agency was in breach of the Settlement Agreement, in writing to the Agency on May 22, 2021. Specifically, Complainant alleged that the Agency failed to remove all references to her involuntary separation and discipline. Moreover, Complainant alleged that the Agency hindered her ability to secure future employment. Complainant was unclear as to her requested remedy. See Informal EEO Complaint, dated May 22, 2021; Complainant Brief at 60-62. In addition to the notice of breach, on the same form, Complainant asserted that she had been subjected to further discrimination in reprisal for participation in prior protected EEO activities on April 22, 26, and 30, 2021, when the Agency allegedly engaged in inappropriate communication with Complainant’s potential receiving agency and when the Agency interfered with her transition to future employment. 2021004399 3 On June 16, 2021, the Agency provided a letter-to-file denoting that Complainant’s performance for the 2019 reporting period was rated as “Achieves Expectations.” See Appeal Response at 241. In its FAD, the Agency concluded that there was no breach of the Settlement Agreement. Specifically, the Agency stated, “In the EEO Settlement Agreement, dated March 5, 2021, the Agency did not promise or agree to not interfere with your transition future employment.” See Appeal Response at 195. The Agency did not address Complainant’s allegations of separate instances of retaliatory conduct in the FAD. Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency has not corrected her personnel documentation to remove references to the termination and/or disciplinary action. She further asserts that she was the subject of additional retaliation for her protected EEO activity when the Agency interfered with her future employment. Along with her appeal, she includes various email communications and supporting documents, as well as her personnel document from the Agency that clearly states that Complainant’s employment was involuntarily terminated on October 15, 2020, due to disciplinary action. The Agency provided documents in response to Complainant’s appeal but did not provide a brief. The Agency’s provided documents were, predominantly, related to the investigation and settlement of Complainant’s prior EEO complaint. ANALYSIS AND FINDINGS 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 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. 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). 2021004399 4 In the instant case, we find that the evidence demonstrates that there was a breach of the Settlement Agreement. Specifically, Complainant has provided evidence that the Agency did not remove all references of the disciplinary action or termination from Complainant’s personnel file. Complainant submitted evidence, which is supported by the record, that clearly indicates that her personnel file included references to her involuntarily termination due to disciplinary action. The Agency has provided no rebuttal documentation, nor have they provided Complainant’s personnel file to indicate that the Agency has taken steps to ensure compliance with the Settlement Agreement once Complainant made the Agency aware of the breach. Moreover, when documents were requested from Complainant’s prospective receiving agency, there is evidence that the Agency did not supply these documents and in fact provided conflicting information regarding their delivery. In light of the above, we find that a preponderance of the evidence supports a finding that, with regard to the issue of removing termination and disciplinary action from employment records, the Agency breached the Settlement Agreement. With regard to the letter-to-file categorizing her performance as fully successful, the Commission finds that the Agency has cured another breach of the Settlement Agreement. The record demonstrates that the Agency provided the letter to Complainant, consistent with the language prescribed in the Settlement Agreement. The Commission has found substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a timeframe specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009) (citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996)); Sorting v. U.S. Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996), citing Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993), (two-week delay in transfer of official letter of regret rather than letter of apology found to be substantial compliance). As the letter was provided, consistent with language agreed upon in the Settlement Agreement, the Commission finds that the Agency has cured this breach of the Settlement Agreement regarding the letter-to-file issue. Concerning the complaints of the subsequent alleged retaliatory treatment, the Agency is correct in that “the Agency did not promise or agree to not interfere with [Complainant’s] transition future employment.” As such, any interference with transition to future employment not specifically outlined in the Settlement Agreement does not constitute a breach of Settlement Agreement. See Montgomery Elevator Co., 730 F.2d 377. Such claims are to be treated as separate complaints. See 29 C.F.R. § 1614.504(c). Thus, if Complainant has not already done so, she must contact an EEO Counselor, if she wishes to pursue these claims through the EEO process. In conclusion, we find that the Agency breached the Settlement Agreement when it failed to remove all references of the disciplinary action or termination from Complainant’s personnel file. 2021004399 5 Where this Commission finds that the Settlement Agreement has been breached, the only two remedies usually available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. § 1614.504(c). We note that if the underlying complaint is reinstated for further processing, the parties must be returned to the status quo ante at the time that the parties entered into the settlement agreement, which would require that Complainant return any benefits received pursuant to the settlement agreement. Because Complainant has not indicated which remedy she prefers, we therefore give Complainant the option, in accordance with this decision and the ORDER below, of either reinstating her underlying EEO complaint, or reforming the Settlement Agreement to require specific performance of its provisions as noted above. CONCLUSION We AFFIRM, in part, and REVERSE, in part, the Agency’s decision on Complainant’s allegations of breach of the Settlement Agreement and REMAND the complaint for further processing, in accordance with the Order below. ORDER The Agency is ordered to take the following actions: 1. Within thirty (30) calendar days of the date of this decision is issued, the Agency is ordered to notify Complainant of the option to either: (1) return to the status quo prior to the signing of the Settlement Agreement and have her underlying complaint reinstated for processing, or (2) obtain specific performance of the Settlement Agreement. The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice within which to notify the Agency which option she wishes to pursue. Complainant shall be notified that, in order to return to the status quo ante, she must return any monetary benefits (if applicable) or other benefits received pursuant to the Settlement 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 of the Settlement Agreement. Specifically, the Agency shall, within 45 calendar day from the date of Complainant’s election is received, a. Remove all references to involuntary termination and discipline or disciplinary action from Complainant’s personnel file, to include all documents therein. b. Provide Complainant access to her personnel file, to inspect the file of their complete contents, to ensure compliance with the Settlement Agreement and this Order of the Commission. 2021004399 6 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). 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. 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. 2021004399 7 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). 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. 2021004399 8 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 November 29, 2021 Date