[Redacted], Marlon H, 1 Complainant,v.w Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2021003098 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marlon H,1 Complainant, v. w Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2021003098 Agency No. DCAA-CASE-HQ20-009 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 5, 2021 final decision that it was in compliance with the terms of an October 5, 2020 settlement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant period, Complainant worked as an Administrative Officer, GS-11, at the Agency’s Headquarters Office in Sandy Springs, Georgia. On October 5, 2020, Complainant and the Agency entered into a settlement agreement to resolve the seven claims Complainant raised in a formal EEO complaint identified as Agency No. DCAA-CASE-HW20-009. One of the claims resolved through the settlement agreement involved Complainant’s performance appraisal for the period of April 1, 2019 through March 31, 2020. In pertinent part, the October 5, 2020 settlement agreement included the following provisions: 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. 2021003098 2 2. Agency Consideration. In consideration of Complainant’s agreement to take the actions set forth in paragraph 3 below, the Agency agrees to assess Complainant’s performance for the annual rating period ending March 31, 2020, and eligibility for a cash award, based on input to be received from Complainant as provided for under provision 3b below. [The Responsible Management Official (RMO)] will perform the evaluation and provide the results to Complainant within fifteen (15) days after input is received. 3. Complainant’s Consideration. In consideration of the Agency’s actions described in paragraph 2 above, Complainant acknowledges that by signing this Agreement, he agrees to: a. Withdraw the current EEO complaint of discrimination (DCAA-CASE-HQ20-009), and any and all complaints, grievances, causes of action, formal and informal, of any nature, or cause on any basis, against the Department of Defenses and/or DCAA, in any stage of the complaint or proceeding in any forum or jurisdiction. b. Submit a narrative write-up for his performance in each critical element for the period ending March 31, 2020. Complainant will submit write-up to [RMO] within thirty (30) days of Complainant signs this Agreement. c. Not pursue any issue which was raised in any individual complaint or pre-complaint matter, or grievance, or which could have been raised in any individual complaint or pre- complaint matter or grievance through the date this Agreement is executed; 5. Agreement Entered into Freely and Voluntarily Under No Duress. Complainant represents and warrants that in entering into and executing this Agreement, he has voluntarily entered into this Agreement without duress, coercion, or undue influence. 7. Full and Final Release. Complainant fully, completely, and finally releases the Agency, its officials, agents, employees, former employees, representatives, or their successors or assigns from any and all complaints, claims, liabilities, grievances, appeals, lawsuits, or causes of action, whether known or unknown, that he had, had, or may have arising from the negotiation and execution of this Agreement, including the alleged action being appealed. 2021003098 3 10. Breach of Agreement. Failure of the Agency to carry out the terms of this Agreement as set out in paragraph 2 above, for any reason, other than for noncompliance or waiver of this Agreement by the Complainant, may result in reinstatement of the complaint, under 29 C.F.R. § 1614.504(a), for either: (1) further processing, or (2) implementation of the terms of this Agreement. If the Agency does not take the actions described in paragraph 2 above, the Complainant shall notify the Agency’s EEO Director, in writing, at dcaa-eeo@dcaa.mil, of the alleged noncompliance with this Agreement, within thirty (30) calendar days after he has served the Agency with the allegations of noncompliance but must file appeal within thirty (30) calendar days of his receipt of the Agency’s determination concerning the alleged noncompliance. 11. Severability. If any provision in this Agreement is found by a court or administrative body of competent jurisdiction to be invalid, the invalidity of any such provision will not affect the validity or enforceability of any other provision in this Agreement, and all remaining provisions in this Agreement may be enforced in a court of competent jurisdiction, On October 20, 2020, Complainant contacted an EEO counselor and thereafter filed another formal complaint (DCAA-CASE-HQ21-002) consisting of 19 claims, purportedly occurring from August 2019 through December 1, 2020. However, on or about February 12, 2021, the Agency partially accepted complaint DCAA-CASE-HQ21-002 and dismissed claims 1 - 10 finding that these claims were duplicates of the allegations in DCAA-CASE-HQ20-009. The Agency found further that Complainant had waived his rights to these claims when he voluntarily entered the October 5, 2020 settlement agreement. Thereafter, on March 9, 2021, Complainant, through a non-attorney representative,2 alleged breach of the October 2020 settlement agreement. Complainant argued that the settlement agreement was invalid because the agreement lacked consideration. Complainant further argued that the Agency breached the agreement when the RMO failed to provide Complainant a copy of the performance review results within fifteen (15) days. On April 5, 2021, the Agency issued a decision on Complainant’s allegation of breach. The Agency determined that Section 2 of the settlement agreement supported a determination that the agreement did not lack consideration. The Agency acknowledged that Complainant incurred a ten (10) day delay for receiving the performance review results but argued that Complainant was not harmed by the delay. Finally, the Agency determined that Complainant was not coerced into signing the agreement and attested that he freely entered the agreement as stated in Section 5 of the agreement. Additionally, the Agency indicated that Complainant had seven (7) days from the date he signed the agreement to revoke his acceptance of the agreement but failed to do so. 2 The record reflects that Complainant obtained a non-attorney representative in December 2020. 2021003098 4 The instant appeal followed. On appeal, Complainant, through his representative, requests that the Commission reinstate the claims the Agency dismissed in its February 2021 partial acceptance of Complainant’s other complaint, DCAA-CASE-HQ21-002. Complainant also argues that the October 2020 settlement agreement is invalid and lacks consideration because the Agency agreed to give Complainant what he was already entitled. ANALYSIS AND FINDINGS February 12, 2021 Partial Acceptance The record indicates, and Complainant does not dispute, that the Agency partially accepted some of the claims raised in complaint DCAA-CASE-HQ21-002. Specifically, the Agency dismissed claims 1 - 10 and accepted claims 11 - 19. On appeal, Complainant requests that the Commission reinstate the dismissed claims. We determine, however, that Complainant’s appeal of this dismissal is premature and not properly before the Commission. The regulation at 29 C.F.R. § 1614.107(b) provides that when an Agency issues a partial acceptance of a complaint, as is the case here, the non-accepted claims are not appealable until final action is taken on the remainder of the complaint. Here, there is no indication that the Agency has issued a final decision on the accepted claims in DCAA-CASE- HQ21-002. Therefore, Complainant’s appeal of the Agency’s partial acceptance of DCAA- CASE-HQ21-002 is dismissed. October 5, 2020 Settlement Agreement 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). Further, the adequacy or fairness of the consideration in a settlement agreement generally is not at issue, as long as some legal detriment is incurred as part of the bargain. 2021003098 5 However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Service, EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep’t of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep’t of Health and Human Services, EEOC Request No. 05910888 (Mar. 11, 1992). Here, Complainant alleges that the settlement agreement is void for lack of consideration. However, we note the Agency’s affirmative obligation to allow Complainant to submit additional documentation in support of his 2019-2020 performance evaluation after his performance rating had been issued, completed, and acknowledged by Complainant. We note further the Agency’s obligation to review Complainant’s submission to determine whether Complainant was entitled to a cash award resulting from any change in his performance appraisal. We conclude that there is consideration to constitute a binding settlement agreement. Moreover, our review of the record further indicates that there was no breach of the October 5, 2020 settlement agreement. Complainant complied with Section 3 of the agreement and submitted his writeup for each of the critical elements on November 5, 2020. In accordance with Section 2 of the agreement, the Agency had fifteen days to review Complainant’s submission and notify Complainant of the results. However, the Agency completed the review on November 30, 2020, and did not provide Complainant the results, which indicated no change in his performance rating, until December 1, 2020, more than fifteen days after Complainant’s submission. Nevertheless, we note that the Agency complied with the settlement agreement well before Complainant alleged breach, approximately three months later on March 9, 2021. Therefore, at the time Complainant had alleged breach, the Agency had already cured the delay. Additionally, the performance review revealed no change in Complainant’s rating and there was no indication that Complainant was entitled to a cash award. Consequently, Complainant was not harmed by the Agency’s delay. For these reasons, we find that the Agency properly determined that there was no breach of the October 5, 2020 agreement. CONCLUSION The Agency’s final decision finding no breach of the October 5, 2020 settlement agreement is 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 2021003098 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 (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. 2021003098 7 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 23, 2021 Date