[Redacted], Marguerita D., 1 Complainant,v.Robert J. Dalessandro, Acting Secretary, American Battle Monuments Commission, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021003530 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerita D.,1 Complainant, v. Robert J. Dalessandro, Acting Secretary, American Battle Monuments Commission, Agency. Appeal No. 2021003530 Agency No. ABMC-2019-002 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated April 14, 2021, finding that it was in compliance with the terms of the settlement agreement into which the parties entered.2 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 the Chief of Knowledge Management, GS-0301-15, at the Agency’s American Battle Monuments Commission in Arlington, Virginia. 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 The Final Agency Decision consists of an email exchange with emails dated April 7, 2021 through April 14, 2021, and which responds directly to Complainant’s March 31, 2021 email to the Agency notifying them of her breach allegations. 2021003530 2 Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 6, 2021,3 Complainant and the Agency entered into a settlement agreement to resolve the matter (“Settlement Agreement”). The Settlement Agreement provided, in pertinent part, that: Paragraph 5: “Upon the effective date of this agreement, Complainant will continue in the Chief of Knowledge Management position on a 100% telework status, reporting to and with duties as assigned by the Agency's Headquarters Chief of Staff. The job series will be changed from GS-0301-15 to GS-2210-15. Any and all tasks assigned by the CIO associated with the documents referenced in paragraph 3 (specifically, the Notification of Unacceptable Performance and Opportunity Period (OP) to Demonstrate Acceptable Performance, dated November 18, 2020 and the Notification of Performance Deficiencies, dated July 2, 2020) will no longer be [Complainant’s] responsibility and will remain within the Office of the Chief Information Officer, except that the Headquarters Chief of Staff may assign her responsibilities related to the INADEV/Mall kiosks contract.” (Hearing File, p. 59). Paragraph 19: “Complainant will vacate her office at ABMC Headquarters within thirty (30) calendar days of the effective date of this agreement. Within fifteen (15) business days of the effective date of this agreement, Complainant will meet, in-person or virtually, with the ABMC Records Manager (or other agency designee) to inventory and transfer all ABMC records currently in her office or in her possession. Within fifteen (15) business days of the effective date of this agreement, Complainant will return any and all property of ABMC, including any IT equipment purchased by or for Complainant with ABMC funds, with the exception of the Microsoft Surface Book issued to her, which she will return no later than the date LWOP begins. Complainant will return her official passport no later than 10 business days after the effective date of this agreement. Failure to return the passport and/or suspected misuse will be reported to the U.S. Department of State for appropriate action. (Hearing File, p. 64). After the Settlement Agreement was signed by both parties, on February 3, 2021, the Agency issued Complainant a Memorandum placing her on administrative leave “pending an investigation into [her] downloading and possible removal, deletion, or destruction of ABMC records.” (Complainant Appeal Brief, p. 24). On February 4, 2021, Complainant was notified that she would remain on administrative leave until March 1, 2021. (Complainant Appeal Brief, p. 25). On March 1, 2021, Complainant’s administrative leave was extended through December 5, 2021. (Complainant Appeal Brief, p. 26). 3 Complainant signed the Settlement Agreement on January 29, 2021. The Agency signed the Settlement Agreement on February 1, 2021. The Settlement Agreement provides that it becomes effective on the eighth calendar day following Complainant’s signature, which is February 6, 2021. 2021003530 3 By e-mail to the Agency dated March 31, 2021, Complainant alleged that the Agency was in breach of the Settlement Agreement, and requested that the Agency specifically implement its terms. Complainant raised four separate claims of breach, including specifically, that the Agency failed to continue Complainant in the Chief of Knowledge Management position on a 100% telework status, when on March 1, 2021, Complainant was notified that she had been placed on administrative leave through December 5, 2021. Complainant also asserted that she had “returned ‘any and all property of ABMC, including any IT equipment purchased by or for Complainant with ABMC funds.’ Still, the Agency continues to assert the possibility, without providing any particulars or any documentation, that Complainant has not returned all of the aforementioned property.” (Email Notice of Settlement Breach, p. 1). In its April 14, 2021 FAD, the Agency concluded that it had fully complied with the Settlement Agreement and it was not in breach. The instant appeal followed. On appeal, Complainant contends the Agency is in breach of the Settlement Agreement because placing her on administrative leave violates Paragraph 5 of the Settlement Agreement. Complainant argues that her roles and responsibilities were considered before the Settlement Agreement was signed and the parties had contemplated that Complainant’s electronic access would end when her Leave Without Pay began. She states that the Agency’s investigation revealed no deletion or destruction of Agency records and the explanation provided with the decision to place Complainant on administrative leave until December 5, 2021 is disingenuous. Complainant states the Agency’s reliance on records management and removal is unsupportable; Complainant’s performance under the Oaktree contract was specifically considered as part of the Settlement Agreement and Paragraph 8 of the Settlement Agreement prevents the Agency from issuing any “disciplinary action, proposed adverse action, or decision on proposed adverse action” that related to the Oaktree contract or any conduct or performance that occurred and was known or should have been known to the Agency prior to the effective date of the Agreement; the job responsibilities of Complainant and her access were already known and specifically written into the Settlement Agreement in Paragraph 5 so these could not have been relied upon after the settlement to justify placement on administrative leave. She also contends that she has complied with Paragraph 19 of the Settlement Agreement regarding the return of equipment and files and asks that it be determined she has complied with her settlement obligations. The Agency contends on appeal that Complainant has not identified any obligation of the Settlement Agreement with which the Agency has not complied, noting that the Settlement Agreement is silent as to administrative leave. The Agency further states that the decision to place Complainant on administrative leave is based on conduct that was discovered after the date the Settlement Agreement was signed, and Complainant has not identified any harm from being placed on administrative leave. The Agency contends it has complied with all the terms of the Settlement Agreement regarding Complainant’s job status and avers that nothing in the Settlement Agreement requires the Chief of Staff to assign Complainant any job responsibilities. 2021003530 4 It notes that the Settlement Agreement is silent on the issue of administrative leave and that placement of an employee on administrative leave, without loss of pay, for a limited period pending her separation from the Agency is not a form of disciplinary or adverse action. The Agency states concerns about Complainant’s conduct arose when, on February 2, 2021, the day after the Settlement Agreement was signed by both parties, Complainant was seen clearing out her office although she was supposed to be on telework and she had not informed her Supervisor that she would be in the office. Afterwards, her office was almost completely empty of documents and records, and it appeared removal may have begun as early as January 27, 2021. The Agency then noticed Complainant had been accessing and downloading electronic records. The Agency contends Complainant had no need to access many of these records. The Agency also argues Complainant initially did not return some equipment and the equipment that was returned showed comingling of Agency and personal records. Lastly, the Agency argues Complainant has not identified any harm from being placed on administrative leave because she remains in the position of Chief of Knowledge Management in 100% telework status, as required by the Settlement Agreement; the Agency will respond to employment checks by confirming she is employed in full-time status at the GS-15, Step 10 salary level and her leave status (whether annual, sick, or administrative) will not be reported; and the Agency will provide employment references as specified in Paragraph 12 of the Settlement Agreement. As to Complainant’s other claim about return of Agency equipment and records, the Agency states the Settlement Agreement only requires Complainant to return Agency records and equipment in her possession, but it does not require the Agency to stipulate that she has done so. 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). It is Complainant's burden to demonstrate the agency's noncompliance by a preponderance of the evidence. See Moore v. Dep't of the Navy, EEOC Appeal No. 01931395 (Apr. 19, 1993), reconsideration denied, EEOC Request No. 05930694 (Apr. 7, 1994). 2021003530 5 In the instant case, Complainant has failed to show the Agency has not complied with the Settlement Agreement. In terms of Complainant’s placement on administrative leave, the Agency Chief of Staff testified that Complainant “continues to be carried by [the Agency] as Chief of Knowledge Management in 100% telework status, in compliance with the [Settlement] agreement, and will be until she departs the agency”. He further noted the Complainant continues to be reflected as reporting to the Agency Chief of Staff; her leave status will not be reported during employment checks; and employment references will be as discussed in the Settlement Agreement. (Agency Appeal Brief Exhibit 2). The Settlement Agreement states that the Complainant will have “duties as assigned by the Agency’s Headquarters Chief of Staff” but it does not define what these duties might be or require the assignment of any specific duties. As noted, the Settlement Agreement is silent as to placement on administrative leave with pay. We note that Paragraph 8 of the Settlement Agreement does prohibit the Agency from issuing disciplinary action against the Complainant for any conduct known to the Agency prior to the effective date of the Settlement Agreement. However, administrative leave with pay, especially given the Agency’s statement that it will comply with the employment reference provision of the Settlement Agreement, is not a disciplinary action. Thus it appears the Agency has complied with its obligations under the Settlement Agreement. In terms of Complainant’s request that it be determined she has complied with the Settlement Agreement as it pertains to the equipment issues, Complainant has not shown that the Agency is not in compliance with its obligations under the Settlement Agreement. Paragraph 19 obligates the Complainant to act, but neither that paragraph, nor any other provision of the Settlement Agreement, obligates the Agency to take action regarding Complainant’s return of equipment. For the foregoing reasons, Complainant has not shown that the Agency breached the Settlement Agreement. CONCLUSION We AFFIRM the Agency's final determination finding no breach of the subject settlement agreement. 2021003530 6 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 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). 2021003530 7 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. 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 22, 2021 Date