[Redacted], Lawrence L., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2021004611 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lawrence L.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021004611 Agency No. 9R1M2100436 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated August 4, 2021, regarding compliance with the terms of the June 14, 2021 settlement agreement executed by the parties. The Commission accepts the appeal. 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 in the Aircraft Maintenance Squadron at the Agency’s Robins Air Force Base in Robins, Georgia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an EEO Counselor. On June 14, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (1) the Agency agrees to remove from the LEAP system the two Direct Safety Violations regarding Complainant’s failure to wear a mask within 30 days of the signing of the agreement. By letter to the Agency, dated July 8, 2021, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement its terms. 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. 2021004611 2 Specifically, Complainant alleged that the Agency failed to remove the two safety violations from the LEAP system. In its August 4, 2021 decision, the Agency conceded that it was in breach of the settlement agreement because the violations had not been removed from the LEAP system. However, the Agency reasoned that the breach was excused by impossibility because LEAP system protocols do not permit the removal of violations entered in the system. According to the Agency, the individual erroneously assigned with settlement authority was unaware that the agreed upon task could not be accomplished. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant again seeks to have the Agency specifically implement the terms of the settlement agreement. The Agency contends that it is now in substantial compliance and requests Complainant’s appeal be dismissed. 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). On appeal, the Agency contends that “[o]nce Complainant filed the instant appeal, the Agency again looked further into the issue” and a Maintenance Data Systems Specialist was able to request and obtain edits to the LEAP system. Specifically, the single violation2 which appeared in the system was moved to “inactive”. 2 The Agency notes that only a single violation was in the LEAP system, not two, as stated in the settlement agreement. 2021004611 3 Therefore, according to an affidavit from the Deputy Director of Quality, the violation will not populate in the LEAP system when data is pulled. Therefore, we find that the Agency has substantially complied with the terms of the agreement. To the extent that the Agency’s actions exceeded the thirty-day time limit, there is no indication that Complainant suffered any harm by the delay. 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 time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Dep’t of Health and Human Services, EEOC Appeal No. 0120073654 (Aug. 17, 2009) (citing Lazarte v. Dep’t of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996)); Sortino 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). CONCLUSION Finding that the Agency has substantially complied with the settlement agreement, the Agency’s decision is hereby 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 2021004611 4 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. 2021004611 5 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 15, 2021 Date