[Redacted], Les P., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2021003598 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Les P.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003598 Agency No. ARFTHUA20NOV00150 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated June 21, 2021, finding that it had complied with the terms of a March 1, 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 Strategic Planning Officer, Grade GS-15, at the Army Futures Command at Aberdeen Proving Grounds, Maryland. Complainant had been recruited by the Agency’s Military Intelligence Civilian Excepted Program and planned to pursue employment in a new career field as a Special Counterintelligence Agent. To do so, Complainant had to accomplish requisite training. From June 2020 to October 2020, was a student enrolled in the Counterintelligence Officer Course (CIOC), at the Agency’s Intelligence Center of Excellence on Fort Huachuca, Arizona. Believing that the Agency subjected him to unlawful discrimination based on race (Native American and Pacific Islander), Complainant contacted an Agency EEO counselor to initiate the EEO complaint process. 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. 2 2020003598 On March 1, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. In exchange for Complainant withdrawing his EEO claims, Paragraph 3.d. of the settlement agreement provided, in pertinent part, that: Upon successful completion, [of Complainant] will be issued a CIOC graduation certificate and DA Form 1059 showing completion of the course. The record reflects that Complainant completed the necessary CIOC coursework on March 26, 2021. On April 12, 2021, however, Complainant alleged breach of the subject settlement agreement because he had not received a CIOC course completion certificate. On May 24, 2021, through counsel, Complainant filed a timely breach allegation appeal with the Commission. On June 2, 2021, Complainant received a CIOC graduate certificate from the Agency. On June 21, 2021, the Agency issued a final decision wherein it determined that it had completed its obligations under the settlement agreement. The instant appeal followed. On appeal and through his attorney, Complainant contended that the Agency remained in breach of the settlement agreement. Complainant asserted that the settlement agreement had required the Agency to furnish the CIOC graduate certificate settlement immediately upon his successful completion of the coursework on or soon after March 26, 2021 but the Agency had failed to do so until June 2021. Next, Complainant challenged the accuracy of CIOC graduate certificate that the Agency provided him after its delay. Specifically, the CIOC graduate certificate stated Complainant had attended the CIOC training between September 2020 and February 2021. Complainant argued that the CIOC graduate certificate should have reflected the time when he completed most of the CIOC coursework during in-residence training dates of June through October 2020. Complainant further stated that CIOC’s Commanding General signed CIOC graduate certificate with an effective date of February 3, 2021, as a Major General (U.S. Military Officer Grade O-8). According to Complainant, the Commanding General’s rank had been Brigadier General (U.S. Military Officer Grade O-7) until March 2021. Complainant and his counsel maintained that the Agency’s errors on the CIOC graduate certificate rendered the document a forgery that would undermine Complainant’s prospect in the counterintelligence field. Finally, Complainant’s legal representative demanded unspecified attorney’s fees for the present breach claim. 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). 3 2020003598 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). Regarding Complainants, contentions concerning the dates of his CIOC course attendance, we find nothing within the four corners of the settlement agreement that specified which effective dates the Agency would report on his CIOC graduate certificate. To the contrary, under the settlement agreement, the Agency’s issuance of the CIOC graduate certificate was contingent when Complainant completed the CIOC coursework. In the instant case, we find the Agency has completed its obligations in accordance with the terms of the settlement agreement. We note the Agency admission of of administrative confusion for not issuing Complainant the CIOC graduate certificate sooner than it did. We do not concur, however, with Complainant’s position that “upon completion” expressly meant immediately after completion. We find speculative Complainant’s position that course dates or the commanding general’s rank will undermine the value of the document in his effort to secure a counterintelligence agent position. Complainant has not shown that he has been harmed by the Agency’s delay in providing the CIOC graduate certificate or the disputed data within that document. More importantly, this Commission has long held that where an agency has otherwise acted as required by the settlement agreement, its delay in doing so does not prevent our finding an agency in substantial compliance. We so find here. Lazarte v. Dep’t of Interior, EEOC Appeal No. 01954274 (Apr. 24, 1996). Finally, we note this record failed to evidence bad faith on the part of the Agency. Wade v. U.S. Postal Serv., EEOC Appeal No. 01A32572 (July 3, 2003) (finding substantial compliance despite an agency’s two-month delay before satisfying a term within the settlement agreement). CONCLUSION The Commission AFFIRMS the Agency’s final decision finding no breach of the subject 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. 4 2020003598 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. 5 2020003598 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 21, 2021 Date