U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Latonya D.,1 Complainant, v. Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration (Goddard Space Flight Center), Agency. Appeal No. 2021003888 Agency No. NCN-19-GSFC-00354 DECISION On June 25, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a May 28, 2021 final Agency determination (FAD) that it complied 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 matter, Complainant was employed by the Agency as the Director, Goddard Child Development Center, with the Goddard Space Flight Center, Goddard Employees Welfare Association in Greenbelt, Maryland. On October 31, 2019, during EEO counseling, Complainant and the Agency entered into a settlement agreement. It stated, in pertinent part, that: 1. Effective November l, 2019, the Agency agrees that Complainant's primary point of contact for all matters relating to the Goddard Child Development Center (GCDC) Association will be [the Goddard Space Flight Center Chief of Staff and President of the Goddard Childcare Development Center Association’s Board of 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. 2021003888 2 Directors (“Person 1”)] or her designee. There will be no further need for Complainant to report to [her second line supervisor (“S2”)] in this regard. 2. The parties acknowledge that a new Goddard Employees Welfare Association (GEWA) Program Manager… was recently selected and will begin transitioning into this role in the near term [becoming, effective December 23, 2019, Complainant’s first line supervisor (“S1”)]. Should Complainant have any concerns related to the performance of her director responsibilities for GCDC, she may seek guidance or assistance either from [Person 1] or [S1]. The Goddard Childcare Development Center shut down its childcare operations on March 18, 2020, because of the Covid-19 coronavirus pandemic. Hence, in July or August 2020, Complainant was furloughed resulting in her weekly hours being reduced to 20. By letter dated April 20, 2021, S1 notified Complainant her service was being terminated for the 2021 - 2022 school year. He explained one reason for this was that, over the past year and before her furlough, she challenged his authority, ignored his instructions, and did not make any effort to raise or resolve her disagreements with him, instead seeking recourse from other Goddard Space Flight Center or Goddard Employees Welfare Association officials without conferring directly with him. By letter emailed to the Agency on April 26, 2021, Complainant alleged management breached the settlement agreement when, in terminating her, it partly relied on her allegedly not conferring with S1 but instead seeking recourse from others since this referred to her speaking with Person 1 about her director responsibilities, which the settlement agreement explicitly permitted. She asked that her underlying EEO case be reinstated. In its FAD, the Agency found that it complied with the settlement agreement. The instant appeal followed. 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). 2021003888 3 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). Term 1 of the settlement agreement permitted Complainant to use Person 1 as a point of contact in place of S2 for matters relating to the Association’s Board of Directors which is over the Goddard Childcare Development Center. This is unrelated to Complainant not making any effort to confer directly with S1 to resolve her disagreements with him. While term 2 permits Complainant to seek guidance or assistance about her director responsibilities from either Person 1 or S1, this did not mean, as Complainant contends, that the settlement agreement exempted her from conferring directly with S1 to resolve her disagreements with him. Accordingly, we find that the Agency did not breach the settlement agreement. On appeal, Complainant argues that the settlement agreement is invalid for lack of consideration.2 Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. When, however, one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. Juhola v. Army, EEOC Appeal No. 01934032 (June 30, 1994). A term in a settlement agreement to do what is already required by law is not consideration. Walters v. USPS, EEOC Appeal No. 01A45165 (Nov. 24, 2004). Here, the Agency took on a legal detriment by requiring Person 1, the Goddard Space Flight Center Chief of Staff and President of the Goddard Childcare Development Center Association’s Board of Directors, to be responsive to Complainant’s concerns regarding the Association’s Board of Directors instead of S2 and provide guidance or assistance when requested by Complainant about her director responsibilities. This added additional responsibilities to Person 1. In her notice of breach, Complainant also alleged she was retaliated against for prior EEO activity when S1 terminated her because she did not raise or resolve her disagreements with him, and instead conferred with others. The EEO office failed to recognize this for what it was - a claim that Complainant was discriminated against when she was terminated around April 2021, triggering the requirement to provide EEO counseling and process the claim in accordance with 29 C.F.R. Part 1614. The FAD is AFFIRMED because the Agency did not breach the settlement agreement. But Complainant’s claim of discrimination must be processed in accordance with the Order below. 2 Complainant also argues that the Agency untimely submitted its reply brief. The Agency disagrees. Regardless, we exercise our discretion to consider the Agency’s reply brief. 2021003888 4 ORDER The Agency is ordered to process the remanded claim (Complainant’s termination) in accordance with 29 C.F.R. Part 1614, starting with treating Complainant’s April 26, 2021 contact as a request for EEO counseling in accordance with 29 C.F.R. § 1614.105. Within 10 days from the date of this decision, the Agency shall, in writing, give Complainant a point of contact to receive EEO counseling. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2021003888 5 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 (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. 2021003888 6 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 September 29, 2021 Date
