Trey M,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

2019003052 (E.E.O.C. Aug. 14, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Trey M,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 2019003052

Agency No. HS-FEMA-00352-2018

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from a final decision by the Agency dated April 23, 2019, finding that it was in
compliance with the terms of the 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 Reservist for the Agency. Believing that
the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO
Counselor to initiate the EEO complaint process. Complainant and the Agency entered into a
settlement agreement to resolve the matter.2 The settlement agreement provided, in pertinent
part, that:

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.

2 The record reflects that Complainant signed the settlement agreement on October 11, 2018 and
that a management official digitally signed the agreement on October 16, 2018. In addition, the
Director, Office of Equal Rights and an Attorney-Advisor for the Office of Chief Counsel
digitally signed the agreement in November 14, 2018.
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(2) [The Agency] agrees to take and/or have taken the following actions within 60
(sixty) days of the execution of this settlement agreement to resolve this case:

(3) [The Agency] will initiate a Personnel Action [SF-50] to change [Complainant’s]
separation status from the Agency from “termination” to “resignation.”

(4) [The Agency] has already fully compensated [Complainant] for 85 hours of
online training courses taken while [Complainant] was not deployed in 2017.
This is confirmed through discussions with Complainant and email
communication.

Complainant alleged breach of the subject settlement agreement, and requested that the Agency
specifically implement its terms. Specifically, Complainant alleged that the Agency failed to
issue him a Personnel Action Form (SF-50) changing his termination to a resignation.

In its April 23, 2019 final decision, the Agency found no breach.

The instant appeal followed. On appeal, Complainant reiterates that the Agency breached the
settlement agreement. Complainant asserts that he has requested his revised SF-50 numerous
times from the Agency but has not received it.

In response, the Agency requests that we dismiss Complainant’s breach claim as untimely. The
Agency asserts that Complainant should have contacted the Agency EEO Director to allege
breach of the settlement agreement by January 9, 2019, but that Complainant did not contact the
EEO Director until March 25, 2019, outside of the applicable time limit.

The Agency in its response brief further asserts that the Agency is prohibited from changing
Complainant’s SF-50 from a termination to a resignation due to Executive Order 13839. Finally,
the Agency requests that parties be returned to the status quo ante and that Complainant return
the $2,074.86 he received from the Agency.

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
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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).

As an initial matter, we find Complainant’s breach claim to be timely. Two of the Agency
officials digitally signed the agreement on November 14, 2018. In addition, Complainant, on
appeal, asserts that he contacted Agency officials numerous times about his SF-50.
Complainant, on appeal, submits portions of various emails to the Agency, including emails to
an EEO Specialist and the Agency EEO Director, regarding his SF-50, dated in December 2018
and January 2019. The Agency does not respond to Complainant’s assertion that he contacted
Agency officials on specified dates in December 2018 and January 2019 regarding enforcement
of the settlement agreement. Based on the foregoing, we find Complainant’s breach claim to be
timely.

The Agency asserts that it is unable to comply with the settlement provision in question due to
Executive Order 13839. On May 25, 2018, the President of the United States issued Executive
Order 13839, “Executive Order Promoting Accountability and Streamlining Removal Procedures
Consistent with Merit System Principles.” The Order provides, in pertinent part, that:

Sec. 5 Ensuring Integrity of Personnel Files. Agencies shall not agree to erase,
remove, alter, or withhold from another agency any information about a civilian
employee's performance or conduct in that employee's official personnel records,
including an employee's Official Personnel Folder and Employee Performance
File, as part of, or as a condition to, resolving a formal or informal complaint by
the employee or settling an administrative challenge to an adverse personnel
action.

Here, provision (3) of the settlement agreement requires the Agency to alter Complainant’s SF-
50 from a termination to a resignation, an act the Agency contends is now prohibited by the
Executive Order. Other administrative forums, such as the Merits Systems Protection Board
(MSPB), have found that similar settlement agreement provisions conflict with Executive Order
13839 and can not be enforced by the MSPB. See Kinard v. Dep’t of Def., MSPB. Docket No.
DC-0752-19-0248-I-1 (March 25, 2019) (MSPB AJ found that settlement agreement provision
that cancelled Agency removal action and returned appellant to federal employment pending
retirement conflicted with the Executive Order because it involved an alteration of personnel
files in settlement of an appeal and could not be enforced by the MSPB); see also Rosenau v.
Dep’t of the Navy, MSPB Docket No. SF-0752-19-0302-I-1 (May 10, 2019).

Here, we do not make any determination on whether or not Executive Order 13839 applies to
this settlement agreement. However, based on the Agency’s assertion that it cannot now comply
with the provision in question, we find that the appropriate action is to reinstate Complainant’s
underlying complaint.

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In doing so, we disagree with the Agency’s assertion that Complainant should return the
$2,074.86 he received for online training courses. The Agency asserts that Complainant
returning these funds is necessary in order to return the parties to the status quo ante.3 However,
the record reflects that Complainant was paid this amount by the Agency in 2017, prior to the
execution of the settlement agreement at issue. The record contains a copy of a 2017 W-2 Wage
and Tax Statement indicating that Complainant was compensated for these funds in 2017. In
addition, the record contains an email from Complainant to an Agency EEO Specialist dated
September 21, 2018. Therein, Complainant states that he was compensated for these hours in
December 2017 (prior to the execution of the settlement agreement). The Agency, in its brief in
opposition to Complainant’s appeal, also acknowledges Complainant was compensated for these
hours in December 2017. Agency’s Opposition Brief at 3. The record reflects that Complainant
did not even sign the settlement agreement until October 2018 and Agency officials signed in
November 2018. Moreover, the express language of provision (4) of the settlement agreement
indicates that the Agency had already paid Complainant these funds prior to the execution of the
settlement agreement (“[The Agency] has already fully compensated [Complainant] for 85 hours
of online training courses…)”. Based on the foregoing, we find that the Agency paid these
hours to Complainant, prior to the execution of the settlement agreement. Thus, we will not
order Complainant to return these funds.

Accordingly, we REMAND this matter to the Agency to reinstate Complainant’s underlying
complaint from the point processing ceased in accordance with the ORDER below.

ORDER

The Agency shall resume processing of Complainant's underlying complaint from the point
processing ceased within 30 days of the date this decision is issued. The Agency shall
acknowledge in writing to Complainant that it has reinstated and resumed processing of his
complaint. The Agency is further directed to submit a report of compliance in digital format as
provided in the statement entitled “Implementation of the Commission's Decision.” The report
shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R.

3 “Status quo ante” refers to the parties returning any monies or benefits they received pursuant
to the settlement agreement.
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§§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the
right to file a civil action on the underlying complaint in accordance with the paragraph below
entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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

August 14, 2019
Date