[Redacted], Wilbur R., 1 Complainant,v.Barbara M. Barrett, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2021001781 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbur R.,1 Complainant, v. Barbara M. Barrett, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021001781 Agency No. 9R1M2000666 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated December 22, 2020, finding that it was in compliance with the terms of an August 20, 2020 settlement agreement. 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 During the relevant time, Complainant worked as an Air Traffic Control Specialist at the Agency’s Robins Air Force Base in Georgia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Complainant filed a formal complaint based on race, color, and national origin regarding the Agency’s failure to compensate him for the required fifteen-minute pre-shift arrival, provide breaks as agreed, and compensate in accordance with federal regulations. On August 20, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement contained, in pertinent part, the following provisions: (a) Restore 85 hours of sick leave the Complainant used from April 1, 2020 through April 15, 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. 2021001781 2 (b) The Settlement Authority will meet with Lt. Col to review supervisory expectations; discuss the requirement of 5 USC 55462 for Differential of Pay for Employees of the Federal Aviation Administration and the Department of Defense (DoD) and SAT Operating Instruction 13-204, Chapter 7; and ensure 78 ABW/OSS managerial staff enacts and completes appropriate supervisory training. The Settlement Authority will initiate these conditions within 30 days of the date of the last signature on this agreement. (c) Lastly, the Settlement Authority will ensure Element 6 is changed/modified by removing “additional duties” as an element from the Complainant’s Defense Performance and Management Appraisal System (DPMAS) appraisal system. By letter to the Agency dated November 24, 2020, Complainant alleged breach. Specifically, Complainant alleged that the Agency continued to require him to arrive fifteen minutes prior to the start of his shift and his sick leave was not restored. Further, he asserted that he works ten- hour shifts without scheduled breaks or a meal period. Finally, Complainant stated that his mid- term performance feedback and Notice of Final Decision regarding a proposed suspension were untimely. In its December 22, 2020 decision, the Agency acknowledged that it “initially breached” the agreement when it did not restore Complainant’s sick leave. However, on December 9, 2020, the Agency submitted a request to DFAS to make the agreed-upon change. The Agency also noted that leave restoration is conducted by DFAS, which is outside of the Agency’s control. As for the fifteen-minute early arrival, the Agency denied that Complainant is required to arrive prior to his shift. Further, the Agency stated that on November 12, 2020, Complainant was reminded that the early arrival does not apply to Civilian Air Traffic Controllers. The Agency also denied that Complainant was not provided with breaks during his shifts. With respect to not receiving a final decision on his proposed suspension within thirty-five days, the Agency reasoned that the issue was not part of the settlement agreement. Complainant filed the instant appeal. 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). 2021001781 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). In the instant case, provision (a) required the Agency to restore 85 hours of sick leave. In its decision, the Agency admitted this action was not taken at the time Complainant alleged breach. However, following the breach allegation, the Agency submitted the necessary request to have the leave restored. Further, on appeal, the Agency has provided documentation showing that as of December 19, 2020, Complainant was given Weather and Safety Leave to replace the sick leave used. The Commission has held that, pursuant to 29 C.F.R. § 1614.504(b), an agency has 35 days from the receipt of a Complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has held that if an Agency cures a breach during the 35-day period after filing a breach claim, it will be deemed in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009). To the extent that provision (a) was breached, we find that the Agency has cured the violation. Regarding Complainant’s belief that the agreement was breached when he was required to arrive fifteen minutes before his shift, we agree with the Agency that, while the matter was part of the underlying EEO complaint, his arrival time is not addressed by the August 20, 2020 settlement agreement. In support of his appeal, Complainant has provided several memoranda addressing the issue. For example, in an April 24, 2019 memorandum to “All Controllers,” the Agency stated that civilians were no longer required to show up fifteen minutes before their shift. Weeks later, however, a May 5, 2019 memorandum regarding Air Traffic Controller Procedures, applying to “all personnel performing air traffic control (ATC) duty at Robins AFB Tower”, describes an early arrival. Following Complainant’s allegation of breach, a December 8, 2020 memorandum for all civilian controllers states that, “effectively immediately,” the fifteen-minute pre-duty arrival is no longer required. These documents reflect an inconsistency in Agency policy, and perhaps in the enforcement of such policy. However, the matter is not covered by the instant agreement.2 Regarding the lack of breaks during his ten-hour shifts, Complainant disputes the Agency’s denial. In fact, Complainant argues that the Agency continues to deny him such breaks and will do so “today, tomorrow, and everyday thereafter as long as this commander decides without accountability.” As with the arrival time issue, we find the matter of breaks is not encompassed within the settlement agreement. Moreover, because Complainant is otherwise entitled to breaks during his shift, the inclusion of such a provision may have lacked sufficient consideration. Complainant is advised to seek EEO counseling on his continued denial of breaks if he believes the Agency’s actions are motivated by discriminatory animus. 2 Complainant may raise the matter, of a pre-shift arrival time, with an EEO Counselor if he believes he has been subjected to unlawful discrimination. 2021001781 4 Finally, we agree that the Agency’s alleged untimely action regarding performance feedback or a determination on a proposed suspension are beyond the terms of the August 20, 2020 agreement. CONCLUSION The Agency’s decision finding no breach of the subject settlement agreement was proper and 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. 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. 2021001781 5 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. 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 March 24, 2021 Date