[Redacted], George M., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2021001266 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 George M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021001266 Agency Nos. HS-CBP-00213-2018, HS-CBP-00144-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated December 1, 2020, 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 as a Supervisory Human Resources Manager, GS-0201-15, at the Agency’s Office of Human Resources Management in Washington, District of Columbia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO counselor to initiate the EEO complaint process. Complainant subsequently filed a formal EEO complaint in HS-CBP-00213-2018 on February 9, 2018, and a second formal complaint in HS-CBP-00144-2020 on February 4, 2020. On April 10, 2020, Complainant and the Agency entered into a settlement agreement (“Agreement”) to resolve both matters. The settlement agreement provided, in pertinent part, that: 2. In exchange for the promises of the Complainant contained in paragraph 1 (above), the Agency agrees: 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. 2021001266 2 …f. Within sixty (60) days of the effective date of this Agreement, refer the Report of Investigation for HS-CBP-00213-2018, including any supplemental report, to a Special Disciplinary Review Board for the purpose of determining whether Agency officials named and/or involved in the complaint engaged in misconduct and if so, what corrective action is necessary. The Agency agrees: (1) To provide the Complainant the opportunity to select three management officials and two substitutes who will serve on the Board from an Agency generated list of officials the Agency finds acceptable. If one or more of the selected management officials are unavailable to serve on the Board, the Office of Human Resources Management will select a substitute. In the event none of the officials selected to be on the Board or act as a substitute are available, the Office of Human Resources will select an official(s) from the Agency generated list; (2) To solicit the Complainant’s recommendation as to the Office of Human Resources Management representative who will present the case to the Board. In the event the Complainant’s recommendation is not accepted, the Agency will advise the Complainant of the representative who will be presenting the case, and consider any objections or concerns the Complainant may have; (3) The Office of Human Resources Management representative presenting the case will be provided a point of contact with the Office of Privacy and Diversity to consult with if the Board members have questions about discriminatory conduct; (4) To provide the Complainant the opportunity to provide the Board an impact statement for consideration with the ROI; and (5) To complete the review and disciplinary process by September 30, 2020. Upon completion, the Agency will inform the Complainant whether misconduct was found and corrective actions was taken. Only aggregate information will be provided to the Complainant - i.e., the number of officials under review, the number of officials determined to have engaged in misconduct, and the number of corrective actions implemented. Agreement, p.3, Paragraph 2.f. By letter to the Agency dated October 29, 2020, Complainant alleged that the Agency was in breach of the settlement agreement and requested that his complaints be reinstated for further processing. Specifically, Complainant alleged that the Agency failed to comply with paragraph 2.f. of the Agreement. 2021001266 3 He stated that the Report of Investigation (“ROI”) identified thirteen (13) Department of Homeland Security (DHS) officials named or involved in the Complainant, and asserted the Special Disciplinary Review Board (“DRB”) failed to review the conduct of seven (7) of the management officials named or involved in the complaint as required by Paragraph 2.f. of the Agreement. He also stated the Agency failed to comply with the part of the Agreement because the Agency failed to follow and apply law, rule, government-wide regulation, and Agency policy in the conduct of the Special DRB. The Agency responded that it had complied when it held a Special DRB to review the ROIs and Complainant’s impact statement. The Agency noted that Complainant was allowed to select the members of the DRB from a list of current Senior Executive Service DRB members, and the persons he selected did in fact serve on the DRB. The Agency also noted the DRB Specialist selected by Complainant did present the case and the DRB members reviewed the information in its entirety. The Agency notes nothing in the Agreement required the DRB to determine misconduct or proposed disciplinary action. In its December 1, 2020 FAD, the Agency concluded it had substantially performed in accordance with the terms of the Agreement. Complainant filed the instant appeal. On appeal, Complainant contends the Agency’s FAD failed to draw its conclusions from the facts presented by the Agency (arguing that the Agency’s responses indicated Agency officials named or involved in the Complaint were not reviewed by the Special DRB); the Agency’s FAD failed to address the claims in the breach notice (arguing the Agency ignored the claim that the Agency had failed to adhere to Federal laws, Agency policies, etc. and instead recast Complainant’s breach allegations); the Agency failed to comply with Paragraph 2.f. of the Agreement when it did not review and determine whether seven (7) of thirteen (13) Agency officials named or involved in the Complaint engaged in misconduct; the Agency failed to comply with Paragraph 2.f.5 of the Agreement when it did not timely inform the Complainant of whether misconduct was found and corrective action was taken; and the Agency failed to comply with Paragraph 2.f. of the Agreement when the Special DRB did not apply relevant Federal laws, rules, government-wide regulations, Agency policy, and Agency procedures. The Agency contends on appeal that the FAD was correct and Complainant’s appeal should be dismissed in its entirety. The Agency notes Complainant is focused on the outcome of the Special DRB, but that the Agency did exactly as it was required under paragraph 2.f.5 of the Agreement by convening the Special DRB, and allowing the DRB members the discretion to determine which Agency officials to review, and if any of those Agency officials engaged in misconduct that warranted corrective action. The Agency argues that nothing in the Agreement required the aggregate number of officials under review to be 13, and that if Complainant wanted certain specific individuals reviewed by the Special DRB, he had ample opportunity to negotiate that during the settlement process, but he did not. The Agency notes it was not required to notify Complainant by any specific timeline, it timely responded to Complainant’s inquiries, and it did conduct the Special DRB within the time frame specified in the Agreement. 2021001266 4 Lastly, the Agency argues that the Agreement in no way obligated the Special DRB to determine misconduct or propose disciplinary action if the DRB members did not believe that misconduct was supported by the preponderance of the evidence. 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). In the instant case, the record reflects the Agency has complied with the plain meaning of the terms of the Agreement. Within 60 days of the effective date of the Agreement, the Agency provided the ROI and the supplemental ROI to a Special Discipline Review Board as required by Paragraph 2.f. The DRB consisted of the three management officials selected by Complainant from an Agency generated list as required by Paragraph 2.f.1. Complainant’s chosen Office of Human Resources Management representative presented the case to the DRB as required by Paragraph 2.f.2. A point of contact within the Office of Privacy and Diversity was provided as required by Paragraph 2.f.3. Complainant provided an impact statement on July 13, 2020, which was immediately forwarded to Complainant’s chosen Office of Human Resources Management representative to include with the ROIs the DRB was already reviewing as required by Paragraph 2.f.4. After their review of the ROIs and impact statement, the DRB identified eight employees to investigate further. However, two of these employees were no longer employed by Customs and Border Protection so only six of these employees underwent further investigation by the DRB. Ultimately, the DRB found no misconduct and therefore did not issue any corrective action. This review process was completed by September 30, 2020, and these aggregate numbers were provided to Complainant prior to his notifying the Agency he believed it to be in breach of the Agreement, as required by Paragraph 2.f.5 of the Agreement. Complainant is essentially arguing that the DRB failed to investigate the proper number of Agency officials and that it erred in not finding that any misconduct on the part of any Agency officials. While Complainant may disagree with the outcome of the Special DRB required by Paragraph 2.f of the Agreement, the record does not reflect the Agency has breached this provision. 2021001266 5 The Agreement does not require that any specific number of officials be investigated, and, taken with the requirement to provide Complainant with the aggregate number of officials investigated, the Agreement clearly did not require the investigation of any certain specific individuals. The Special DRB was tasked with determining whether Agency officials named and/or involved in the complaint had engaged in misconduct, and if so, what corrective action was necessary. The DRB reviewed the ROIs and Complainant’s impact statement and chose to further investigate six Agency officials. There was no requirement in the Agreement that the DRB do more than this or that they investigate officials who were no longer part of Customs and Border Protection. In fact, Complainant acknowledged in his October 27, 2020 email that this was specifically discussed during the settlement meeting, yet no such term was included in the Agreement. If Complainant wanted specific individuals investigated by the DRB, he should have negotiated for that to be included in the Agreement. There was no requirement that the DRB find misconduct (and indeed, as noted by the Agency, this would be an improper use of the DRB). The DRB did not find misconduct, therefore the Agreement did not obligate any corrective action be taken. Complainant alleges that it was an error for the DRB not to find misconduct, but even if true, this does not demonstrate breach of the Agreement. Based on the plain language of the Agreement, the Agency is not in breach of the Agreement. CONCLUSION After a thorough review of the record, and for the foregoing reasons, the Commission AFFIRMS the Agency's final determination finding no breach of the settlement agreement. 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). 2021001266 6 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. 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. 2021001266 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 December 23, 2021 Date