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

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2021004439 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reginald K.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021004439 Agency No. 8L1M2000950 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision (FAD), dated March 11, 2021, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. 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 as a Composite Plastic Fabricator, WG-4352-10, for the Agency’s 547 Aircraft Maintenance Squadron at Hill Air Force Base, Utah. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an EEO Counselor to initiate the EEO complaint process. On December 28, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2)(a) Within 30 calendar days from signing of settlement agreement, management will submit a request to the appropriate Agency office 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. 2021004439 2 to provide the complainant a lump sum payment of fifteen thousand dollars ($15,000;00). The complainant must complete a direct deposit form for electronic payment. (b) Within 30 calendar days from the signing of settlement agreement, a list of 4 names selected by management as possible assigned mentors for the complainant from which the complainant can choose. The mentor and the complainant will meet a minimum of once a quarter. The primary purpose of the meetings will be to provide the complainant guidance on career progression in preparation for the complainant to apply for future Wage Leader positions. (c) Management will retrain all organization non-bargaining unit employees on EEO standards, anti-harassment, bullying, diversity, and inclusion with currently approved OPM/Air Force training curriculum. This training will be available to bargaining unit employees in accordance with current negotiated language. By email to the Agency dated March 9, 2021, Complainant alleged that the Agency was in breach of the settlement agreement. However, Complainant did not specify how the agreement had allegedly been breached nor whether he wished to reopen his complaint or obtain specific performance of the settlement terms. In its FAD, the Agency concluded there was no breach of the agreement. The Agency noted that on January 18, 2021, Complainant had been sent a list of four possible mentors. By February 11, 2021, stated the Agency, Complainant had met with one of them, who agreed to the mentorship. In addition, on February 4, 2021, Complainant “stopped by the EEO office stating that [he] had been paid the $15,000” payment referenced in the settlement. The FAD, however, did not specifically address clause 2(c). The record contains a January 28, 2021 email to Complainant with a list of four possible mentors, and a copy of a purchase voucher for a $15,000 check identifying Complainant as the payee. Complainant filed the instant appeal from the Agency’s FAD. 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). 2021004439 3 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). Initially, we note that the Agency is understandably unclear regarding what precisely Complainant is appealing. On appeal, Agency states: While it appears that the Complainant may have contacted the EO Office in February-March 2020 with assertions of noncompliance, which were investigated and apparently resolved, there is presently a lack of evidence that the Complainant notified the EO Office of any claimed non-compliance issues since that time. . . . The instant appeal is a bit of a surprise to the Agency as it received no notification of alleged noncompliance nor did the Agency receive a copy of the instant appeal from the Complainant. Based on the instant record, including Complainant’s vague March 9, 2021 allegation of breach, as well of evidence that Complainant was provided with a list of mentors and payment of $15,000, we find that Complainant has not met his burden in establishing that the Agency is in breach of the agreement. On appeal, Complainant contends that despite agreeing on a mentor, “I have not received even one visit from a mentor.” In response, the Agency asserts that following the March 2021 email it has not received any additional notifications of alleged non-compliance. Further, the Agency argues by alleging, for the first time on appeal, that the settlement was violated when he did not receive quarterly meetings with a mentor, Complainant has deprived it of the opportunity to cure the alleged breach. Nevertheless, the Agency proceeds to address the new breach claim by asserting that it is in compliance with the settlement terms. Specifically, regarding the visits from a mentor the Agency states: [T]he Agency has largely complied, and any complications in the effort stem from or are as attributable to the Complainant as to the Agency. For example, the Complainant did not timely respond to e-mail communications from the Agency. . . . The Complainant also contributed to scheduling conflicts and the alleged delay. . . . The Complainant also contributed to the difficulty in accomplishing quarterly mentorship meetings, but the Agency nonetheless responded in good faith to resolve concerns, adjust mentorship efforts, and provide an additional or alternate mentor. . . . At a point barely two quarters into the performance of the terms of 2021004439 4 the settlement agreement, any alleged issues relative to accomplishing quarterly mentorship meetings is as attributable to the Complainant as anyone. (Citations to record omitted) In support of its assertions, the Agency submits emails showing that the first mentor selected by Complainant subsequently withdrew from his mentorship because he felt that Complainant was not cooperating, and Complainant was then assigned a second mentor. Additionally, the Agency contends it had complied with clause 2(c) of the Agreement by providing employees with a training course entitled “Building a Better Workplace.” Other than his March email, the record does not show that Complainant contacted the EEO Director to allege any additional breach(es) of the Agreement. Based on the instant record, we find that the Agency’s decision finding it was in compliance with the settlement agreement was proper. We find that, to the extent Complainant is alleging the Agency breached the agreement based on actions that occurred after the March 11, 2021 FAD, we cannot appropriately address such claims in the instant appeal. Instead of raising such claims for the first time on appeal, Complainant should contact the Agency EEO Director in writing, in accordance with 29 C.F.R. 1614.504(a). Similarly, as for any allegations that Complainant has been subjected to additional harassment, such a claim should be addressed in a new complaint rather than as a breach of the December 28, 2020 agreement. We note in this regard that should Complainant seek to open such a new complaint, the date of his Counselor contact shall be deemed to be April 17, 2021, which is the date he signed a document characterized as a “Complaint of Discrimination In the Federal Government” detailing such harassment. CONCLUSION Therefore, the Agency’s final decision 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 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 2021004439 5 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. 2021004439 6 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 October 11, 2022 Date