[Redacted], Hana D., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2021003650 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hana D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021003650 Agency No. DLAF-21-0010 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated April 5, 2021, finding that it was in compliance with the terms of a January 27, 2021 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 Senior Accountant at the Agency’s facility in Columbus, Ohio. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 27, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 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. 2021003650 2 4. The Agency agrees to the following relief: a. [Complainant] will be given work projects that allow for senior level exposure and development. b. [Complainant] will represent the Policy team on policy matters relative to assigned and unassigned projects. c. Whenever he is on extended leave, [Complainant’s supervisor, (S1)] will set up a rotational schedule to permit [Complainant] opportunity to oversee the Policy team. d. [Complainant] will be afforded equal opportunities and level of work similar to other colleagues. e. [Complainant] will be permitted to attend meetings (EBCO, CJAR, IPR, ERM, and OSK/FIAR) to gain firsthand knowledge. f. [A named Agency official, A1] will work with [Complainant] to set up a Mentorship and career exposure opportunities. g. [Complainant] and [S1] will work together to develop and implement a Communication and Development Plan within 30 days of the signed agreement. h. Be free from any and all reprisal actions due [to] the filing of the ADR complaint. By email to the Agency’s EEO Office dated March 18, 2021, Complainant alleged breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant asserted the Agency breached provisions 4(g) and 4(h). Complainant alleged that S1 failed to work with her to develop and implement a communication plan within thirty days of the settlement agreement. Complainant asserts that the contents of the draft communication plan resembled a performance improvement plan (PIP). Complainant asserted that the Agency would not provide her a draft copy of the Communication Plan at least one day prior to the meeting. Complainant further asserted that the Communication plan did not include the elements of fairness, supervisor accountability and measurability, and employee achievability. Complainant further stated that S1 engaged in retaliation by leaving her an intimidating voicemail message on March 2, 2021, by drafting a Communication Plan as a PIP, and by planning to remove Complainant from her office location. 2021003650 3 In its April 5, 2021 decision, the Agency found no breach. Regarding provision 4(g), the Agency found that “management made attempts to schedule meetings with Complainant to discuss the Communication Plan. However, Complainant was ill on February 8, and 22, 2021, then she was on leave from February 25, March 1, 2021. When she did receive a draft communication plan on either March 2 or March 5, on March 5, 2021, she requested an extension to meet on March 8, 2021, to allow her time to thoroughly review and update the draft Communication Plan. The request was granted, and the meeting was rescheduled for March 8, 2021. However, shortly before the meeting was to take place, [Complainant] declined the March 8, 2021 meeting, citing that after she reviewed the terms of the [settlement agreement] she determined the Agency failed to comply with the terms of the Agreement, and there was no need to proceed with the meeting.” Thus, the Agency found no breach of provision 4(g). However, the Agency, in its final determination, set forth that within seven days from the date of the final decision, the parties should meet to complete the Communication Plan. Regarding provision 4(h), the Agency found that this provision was void for lack of consideration and thus unenforceable. To the extent Complainant alleged that the Agency was engaging in other acts of reprisal (planning to move her from her office, leaving her an intimidating voicemail message), the Agency informed Complainant these matters should be addressed as a separate complaint and to contact an EEO Counselor, if she wished to pursue these matters. The instant appeal followed. On appeal, Complainant reiterates that the Agency breached provisions 4(g) and 4(h). In addition, Complainant, for the first time on appeal, appears to allege that the Agency breached other provisions of the settlement agreement. Specifically, Complainant, through her attorney, asserts that “[S1] has continued to refuse to allow [Complainant] to oversee the policy team, attend meetings and give her projects that allow for senior level exposure.” In response, the Agency requests that we affirm its final determination finding no breach of the settlement agreement. Regarding provision 4(g), the Agency found that to the extent the Communication Plan was not implemented, it was directly attributable to Complainant’s failure to participate. The Agency reiterates that provision 4(h) lacks consideration. 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). 2021003650 4 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). We concur with the Agency that it is not in breach of provision 4(g) of the settlement agreement. The record contains various emails between the Agency and Complainant reflecting that the Agency reached out to meet with Complainant several times regarding the Communication plan. However, the record reflects that Complainant requested postponements for various reasons (death of family members, being on leave, wanting additional time to review draft Communication Plan etc.). Based on the foregoing, we do not find that the Agency’s actions or inactions resulted in breach of provision 4(g). However, we concur with the Agency’s final decision that this matter should be remanded for the parties to complete the development and implementation of the Communication Plan. To the extent Complainant asserts that the Agency breached provision 4(g) by not including certain elements in the Communication Plan such as fairness and supervisor accountability, the settlement agreement does not expressly provide that these elements be included in the Communication Plan. In addition, the settlement agreement does not provide that the Agency must provide Complainant the draft plan at least one day prior to meeting regarding the plan. We further concur with the Agency that provision 4(h) is void for lack of consideration. Regarding provision 4(h), nothing was promised beyond what the Agency is already obligated to do and there was no legal detriment incurred by the Agency. However, there was other consideration exchanged in other provisions of the settlement agreement. Thus, we find that the agreement is not void but rather reformed without the language of provision 4(h). To the extent that Complainant is alleging that the Agency is engaging in subsequent acts of retaliation (leaving an intimidating voicemail message, planning to move her office), we find that such claims are to be treated as separate complaints. See 29 C.F.R. § 1614.504(c). The Agency properly informed Complainant that she should contact an EEO Counselor if she wishes to pursue such matters. Finally, to the extent Complainant is alleging, for the first time on appeal, that the Agency is in breach of other provisions of the settlement agreement, we decline to address these matters herein. If Complainant wishes to allege breach of other provisions of the settlement agreement, she should contact the Agency’s EEO Director, in writing, regarding these matters pursuant to 29 C.F.R. § 1614.504(a). Accordingly, we AFFIRM the Agency’s final determination finding no breach of the settlement agreement, but we nevertheless REMAND this matter to the Agency to take the following action in accordance with the ORDER below. 2021003650 5 ORDER To the extent that it has not already done so, the Agency shall take the following actions: Within thirty days from the date this decision is issued, the Agency (S1) shall work together with Complainant to develop and implement a Communication and Development Plan pursuant to provision 4(g) of the settlement agreement. The Agency shall submit documentation of the above ordered action to the Commission’s Office of Federal Operations as set forth below in the section entitled “Implementation of the Commission’s Decision.” 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 2021003650 6 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. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 2021003650 7 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. 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 August 19, 2021 Date