U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samual H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021002084 Agency No. HS-ICE-01231-2020 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning his claim of breach of the agreement reached with the Agency regarding his pre-complaint counseling request for alleged unlawful employment discrimination in reprisal for prior EEO activity in connection to Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. §623, et. seq. BACKGROUND At the time of events giving rise to the pre-complaint counseling request, Complainant worked as a Supervisory Detention and Deportation Officer at the Agency’s Detention and Removal Office in Salt Lake City, Utah. On March 22, 2020, Complainant filed a request for pre-complaint counseling, alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity under the Age Discrimination in Employment Act (ADEA) when he was issued a directed reassignment memorandum to relocate him from the position of Assistant Field Office Director in Las Vegas, Nevada, to Detention and Deportation Officer (Non-Supervisory) in Washington, DC. Complaint File at 3. On May 20, 2020, Complainant and the Agency entered into a Pre-complaint Resolution Agreement (Agreement) to completely resolve the issue raised on Complainant’s EEO pre- 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. 2021002084 2 complaint. In return for dismissing with prejudice the relevant EEO pre-complaint, formal or informal, complaint arising from the actions therewith, and any and any other appeals, complaints, or grievances pending against the Agency up to the full date of execution of the agreement, Complainant received a settlement package. The settlement package, in pertinent part, included: 1(a) Assign [Complainant] to a non-supervisory Detention and Deportation Officer (DDO), GS-1801-14, within the Enforcement Division at Enforcement and Removal Operations (ERO) Headquarters in Washington, D.C., instead of the DDO position within the Juvenile and Family Residential Management Unit as stated in the directed reassignment letter dated February 6, 2020. 1(b) Change [Complainant’s] entrance on duty (EOD) date for the position in paragraph 1(a) to be August 2, 2020. 1(c) Change the EOD date for [Complainant’s] wife, to August 2, 2020 for a non-supervisory DDO, GS-1801-14 position, within the Combined Intelligence Unit, ERO Headquarters in Washington, D.C., to coincide with Employee’s EOD date as stated in paragraph 1(b). Complainant was given 21 days to consider the agreement and seven calendar days, after the Agreement was signed, to revoke the Agreement. A provision was included into the Agreement that, if Complainant believed that the Agency failed to comply with the terms of the Agreement, Complainant should notify the Agency, in writing, of the alleged noncompliance within 30 calendar days of when Complainant knew or should have known of the alleged noncompliance. The Agreement specified that Complainant was to notify the Agency’s Office of Civil Rights and Civil Liberties EEO and Diversity Programs (OCR). On May 20, 2020, Complainant and the Agency signed the Agreement. Complaint File at 15-18. Subsequent to the Agreement, Complainant and his wife were transferred to the Washington, D.C. Agency office and provided the positions and EOD dates as outlined in the Agreement. Id. at 26-27. There is no evidence, and Complainant does not contend, that the Agency did not comply with the terms and conditions of the Agreement. On January 6, 2021, well beyond the seven-calendar day revocation period, Complainant contacted a compliance officer within the Agency requesting that the Agreement be rescinded, and his claim be allowed to formally proceed. Complainant argued that the Agreement subjected his wife to an employment action without her expressed written consent and that the Agreement prevented her from addressing the issue surrounding her employment independently through proper channels. As such, Complainant argued that the Agreement is not legally enforceable. He requested that the Assistant Director of OCR formally review the request to rescind the Agreement and allow the claim of discrimination to formally proceed. Id. at 24. 2021002084 3 On February 11, 2021, the Chief of Complaints and Resolution (Chief) in the Agency’s OCR replied to Complainant’s email, advising him that the Agency and the Commission: …have two options to remedy such a situation where settlement agreement is found to be void/unenforceable: 1) reinstate the underlying settled EEO complaint, or 2) order specific performance. It doesn’t appear that any performance is left to be ordered completed. If a complaint is reinstated for further processing, the parties must be returned to the status quo at the time that the parties entered into the settlement agreement. This would require that you return or forego any benefits you received pursuant to the settlement agreement. Please understand, should your underlying EEO complaint be reinstated any benefits gained from the settlement agreement dated and signed May 20, 2020, would no longer apply. You would have to return to your original position prior to the reassignment to the Non-Supervisory GS-1801-14 Detention and Deportation Officer position with ERO in Washington, D.C., and the change to your EOD date to reflect August 2, 2020, would no longer apply. Chief requested that Complainant confirm whether he would like his request to be forwarded to the appropriate division for consideration. Complaint File at 23. On February 12, 2021, Complainant contacted Chief and formally expressed an election to reinstate the underlying claim; requested that both he and his wife be reinstated in their previous positions in the Agency’s Office in Las Vegas, Nevada; and asked that this request to be forwarded to the appropriate Agency office for processing. Id. The record does not reflect a formal decision, or any other further communication, from the Agency determining their finding on the enforceability of the Agreement or the merits of any underlying claim thereof. The instant appeal followed. CONTENTIONS ON APPEAL Complainant contends that, in the email dated February 11, 2021, the Agency’s OCR Acting Unit Chief determined that the Agreement was void and unenforceable. He further asserts that Acting Unit Chief provided Complainant the option to reinstate the underlying complaint and reinstate Complainant and his wife to their former positions in Las Vegas. Complainant states that they have not been restored to their prior positions and the Agency has not indicated whether they intend to do so. Complainant seeks enforcement and a return to his and his wife’s prior positions in Las Vegas. Id. at 21. 2021002084 4 The Agency counters that the settlement agreement between Complainant and the Agency is valid and enforceable, and that Complainant did not follow the agreed upon terms to challenge the Agreement. Moreover, they argue, Complainant’s appeal is untimely and improperly filed with the Commission. Finally, the Agency claims that Complainant does not have standing to challenge the agreement for the reasons Complainant set forth. 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 (Dec. 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 Affs., EEOC Request No. 05900795 (Aug. 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 (Dec. 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). In the instant case, Complainant asserts that the Agreement, in its entirety, should be found void and unenforceable because of the included provision surrounding his wife’s assignment to a position with the Agency in Washington, D.C. Complainant argues that, because his wife did not sign the Agreement and was not afforded the opportunity for legal counsel, the entire Agreement should be voided. Generally, a settlement agreement may be void or voidable, if one of the parties establishes that assent was obtained by duress or coercion. See Hodge v. Dep’t of the Army, EEOC Appeal No. 01954577 (Dec. 7, 1995). In addition, misrepresentation as to facts relevant to the complaint may cause the Commission to set aside a settlement agreement. Wolf v. U.S. Postal Serv., EEOC Request No. 05900417 (June 14, 1990). Complainant has not demonstrated, nor has he claimed, either that there was a misrepresentation of facts or that his assent to the terms of the Agreement were obtained by duress or coercion. Rather, Complainant asserts that, due to her lack of legal counsel and her lack of signatory consent, his wife’s consent was coerced. As an initial matter, the Commission notes that Complainant’s wife was not part of the complaint process, to include the pre-complaint counseling. Furthermore, she was not a party to the agreement. 2021002084 5 Complainant’s challenge as to her rights, therefore, does not raise the issue of either party to the Agreement assenting due to duress or coercion.2 Moreover, Complainant had 21-calendar days to review, and an additional seven days to revoke, the Agreement. There is no evidence in the record that the Agreement, or the discussions thereof, prevented Complainant or his wife from obtaining legal counsel. As Complainant’s wife was not a party to the Agreement, and there is no evidence that either party of the Agreement signed the Agreement under duress or due to coercion, the Commission finds that the Agreement is binding and enforceable. Complainant argues that the Agency found the Agreement void and unenforceable on February 11, 2021. Upon a review of the file, however, the Commission does not find evidence of such a holding. The February 11, 2021, email was advisory in nature as to the possible options in the event that an agreement is held void and unenforceable, but it was not specific to such a finding of the Agreement between the Agency and Complainant. In light of the above, the Commission finds that the Agreement between Complainant and the Agency is binding and enforceable. CONCLUSION We AFFIRM the Agency’s decision that the Agreement is binding and enforceable. 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 2 The Commission could, should this have been expressed as an acceptable option, solely void the specific provision regarding his wife’s employment. However, the remainder of the Agreement would remain binding and enforceable as to Complainant and the Agency. As Complainant indicated that he requested the Agreement, in its entirety, be found void and unenforceable, the Commission declines to sever the individual provision regarding his wife’s position. 2021002084 6 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. 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. 2021002084 7 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 December 21, 2021 Date
