[Redacted], Mervin D., 1 Complainant,v.Monty Wilkinson, Acting Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000226 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mervin D.,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice, Agency. Appeal No. 2021000226 Agency No. OBD-2018-00141 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 11, 2020, finding that it was in compliance with the terms of a January 21, 2020 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 During the period at issue, Complainant worked as a Trial Attorney at an Agency facility in Washington, D.C. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 21, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (3)(a) DOJ/[Civil Rights Division] (CRT) will assign [Complainant] to a nine- month detail with the Disability Rights Section (DRS) beginning February 10, 2020. . . . 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. 2021000226 2 (3)(d) The detail shall not affect [Complainant’s] eligibility to participate in CRT’s Open Season reassignment process to seek reassignment to DRS or another section. In an email from Complainant to the Agency dated August 10, 2020, Complainant requested that the settlement agreement be voided for fraud in the inducement.2 Specifically, Complainant asserted that he met with the Agency’s representative (AR), and a signatory to the settlement agreement, on December 12, 2019 to discuss settlement agreement negotiations. Complainant stated that during the meeting, “[AR] stated that OAAG would be willing to assign [him] to DRS during the detail without [him] applying for a vacancy or going through the Open Season if DRS wanted [him] to stay. [AR] said OARM approval would be required, but she knew the people in OARM who would need to approve and expected OAAG could easily get the required approval.” Complainant, in his August 10, 2020 email, states that the Chief, DRS subsequently stated that she had not heard of this matter and it was her understanding that a reassignment would not happen. In its September 11, 2020 FAD, the Agency concluded that it did not engage in misrepresentation and that the settlement agreement would not be voided. The Agency found substantial evidence in the record that Complainant entered into the agreement knowingly and voluntarily. The Agency, in its final determination, noted that Complainant is an attorney with experience with filing EEO complaints and entering into settlement agreements. Specifically, the Agency found that “record evidence demonstrates that the parties negotiated over the exact terms of the agreement for several months and that at multiple times, [AR] expressly rejected language in the agreement that [he] requested, and that would have provided [him] with a permanent position within DRS. Instead, the Agreement clearly contemplates that [he] could seek permanent reassignment to DRS through CRT’s Open Season program.” The instant appeal followed.3 On appeal, Complainant reiterates that AR promised him that he would not be improperly blocked from an assignment with DRS. However, Complainant asserts that DRS did improperly block him. 2 Commission records reflect that Complainant subsequently alleged breach of the instant settlement agreement again and the Agency issued a final determination finding no breach, dated December 23, 2020. Complainant appealed the Agency’s December 23, 2020 final determination, which has been docketed as EEOC Appeal No. 2021001835 and is currently pending. We will not address herein the breach allegations at issue in EEOC Appeal No. 2021001835, but we will subsequently issue a separate decision for EEOC Appeal No. 2021001835. 3 Commission records reflect that Complainant previously alleged breach of the settlement agreement at issue herein and appealed the Agency’s determination finding no breach. In EEOC Appeal No. 2020003053 (Oct. 13, 2020), EEOC affirmed the Agency’s determination of no breach of the settlement agreement. 2021000226 3 In response, the Agency requests that we affirm its final determination. The Agency asserts that the record contains numerous emails reflecting that AR did not make any side promises to Complainant regarding his reassignment to DRS. The Agency states that the agreement does not contain any language about Complainant being reassigned outside of the normal reassignment process. 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). Complainant has not provided sufficient evidence to invalidate or void the January 21, 2020 settlement agreement. The record contain numerous copies of emails between Complainant and AR regarding settlement negotiations. Complainant repeatedly requested that the agreement contain a reassignment to DRS. However, AR repeatedly rejected this request. Despite Complainant’s assertion, there is no indication that the Agency entered the agreement in bad faith, or fraudulently induced him to enter the agreement through misrepresentation. Provision (7) of the settlement agreement provides, in pertinent part, that “[t]he terms set forth in this Agreement constitute the entire agreement of the parties and may be amended only by an agreement, in writing, signed by the parties.” Based on provision (7), the settlement agreement does not contain any additional promises or obligations on the parties that are not expressly set forth in the January 21, 2020 settlement agreement. To the extent Complainant may be alleging that the DRS did not reassign him to a permanent position after his detail due to his protected classes or prior protected activity, he should contact an EEO Counselor if he wishes to pursue this matter through the EEO process. We AFFIRM the Agency’s final determination that the Agency did not engage in misrepresentation regarding the subject settlement agreement and the agreement will not be set aside. 2021000226 4 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). 2021000226 5 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 February 9, 2021 Date