Alvaro M.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Apr 17, 2019

2019000365 (E.E.O.C. Apr. 17, 2019)

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

Alvaro M.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 2019000365

Agency No. HS-CIS-01785-2018

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 17, 2018, 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

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, GS-9, at the Agency’s Immigrant Investor Program Office in Washington,
District of Columbia.

Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On July 11, 2018, Complainant
and the Agency entered into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:

(1) Complainant will undergo an evaluation period until August 2, 2018 and
his supervisor will evaluate him based on his current Fiscal Year (FY)
2018 performance plan during this evaluation period;

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.
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(2) if Complainant’s supervisor determines that Complainant’s performance
during the evaluation period has met at least the Achieved Expectations
standard in all core competencies and performance goals under his
FY2018 Performance Plan and Appraisal Form (PPA) (meaning an overall
rating of 3.0 or above), then the Agency will non-competitively convert
Complainant from a Pathways Program position into a permanent
position; and

(3) if Complainant’s supervisor determines that Complainant’s overall
performance during the evaluation period was unacceptable in any of the
core competencies and performance goals under his FY2018 PPA
(meaning an overall rating below 3.0) and Complainant has failed the
evaluation period, then the Agency will allow Complainant to voluntarily
resign for personal reasons, effective August 3, 2018, and, if Complainant
identifies the designated management official as a reference, the
designated management official will mention only Complainant’s former
grade, position title, salary, and length of employment for one (1) year
after the date of resignation.

By letter to the Agency dated August 8, 2018, Complainant alleged that the Agency was in
breach of the settlement agreement and requested that the Agency specifically implement its
terms. In so doing, he made numerous allegations against the Agency, including that the Agency
was predisposed to firing him and only acquiesced to a settlement agreement to buy time and
leave him in limbo with no alternative but to resign.

Complainant asserted that he has a mental health disability (major depression and anxiety) and
he attributed his poor performance in January and February of 2018 to his mental health
symptoms. There was no term regarding a reasonable accommodation in the settlement
agreement. However, he said he requested one and did not get a firm response. He noted that he
tended to relapse on an episodic basis and his condition had improved greatly on medication. He
was mainly seeking the accommodation for periods of relapse. Complainant’s supervisor
responded to this request, suggesting that this is not what a reasonable accommodation is for and
he wanted reasonable consideration during those periods. Complainant asserted the Agency’s
management had no interest in helping him obtain a reasonable accommodation.

Complainant alleged that, during his evaluation period, he did everything that was expected of
him and noted his punctuality, attendance at meetings, performance of specific tasks, and
positive feedback from his supervisor. He did not get a review or PPA evaluation prior to being
asked to resign. The Agency’s unwillingness to retain him predated the settlement agreement and
the process lacked credibility and accountability. The Agency’s refusal to retain and convert him
is mainly born of a desire to support a previous supervisor who engaged in reprisal and created a
very hostile work environment for Complainant. The Agency demanded he resign without
respecting the terms of the settlement agreement.
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In response, the Agency averred that it did not breach the agreement because the Agency gave
Complainant an evaluation period until August 2, 2018 under a new supervisor; the Agency’s
actions relating to the supervisory determination of Complainant’s unacceptable performance did
not constitute a breach of the settlement agreement; Complainant’s resignation was processed
according to the terms in the negotiated settlement agreement.

Under the terms of the agreement, Complainant’s success or failure during the evaluation period
was to be determined solely by his supervisor and was based on the core competencies and
performance goals in the PPA. To remove bias in the process, the Agency moved Complainant to
a new supervisor for the evaluation period. Once Complainant’s supervisor determined that he
had failed according to the core competencies and performance goals in his PPA, the Agency
fulfilled its obligation by processing Complainant’s resignation and providing a neutral
reference. The Agency did not promise a formal PPA review conference or an extensive
discussion meeting or provide a written evaluation.

Complainant’s supervisor determined that he had failed because he did not meet expectations for
the quality or timeliness of his work, following instructions, or complying with routine
adjudicative and file management procedures and policies. The Agency notes examples of his
failure to perform in areas of core competency, specifically in communication and technical
proficiency, and failure to meet performance goals in quality and customer service.

The Agency asserted that its processing of Complainant’s resignation was not in breach of the
agreement. Once Complainant’s supervisor had determined Complainant had failed his
evaluation period, the Agency did not need a resignation letter or any other affirmative action
from Complainant in order to process the resignation.

The Agency also claimed to have ensured that Complainant would go through a reasonable
accommodation process in order for his disability to be fully accommodated during the
evaluation period. However, we note that there is nothing in the record indicating Complainant’s
request for a reasonable accommodation had been fully processed and was granted or denied.

The Agency states that Complainant’s disability greatly improved with medication and he was
mainly seeking an accommodation for periods during relapse. It also states that Complainant did
not allege he was going through such a relapse during the evaluation and acknowledges that the
settlement agreement is silent as to any terms relating to a reasonable accommodation. The
Agency notes that the EEO Specialist concluded that Complainant was simply putting his
disability on record.

A memo from Complainant’s supervisor to the IPO Compliance Division Chief, dated August 2,
2018, indicates that Complainant underwent an evaluation period through August 2, 2018, at the
end of which, he did not meet expectations in all performance goals or core competencies.
Therefore, Complainant’s supervisor recommended not converting him.

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Complainant’s supervisor also provided a statement indicating he observed Complainant’s
performance for approximately 30 days, from June 22, 2018 to August 2, 2018. During that time,
Complainant did not meet expectations for the quality or timeliness of his work, following
instructions, or complying with routine adjudicative and file management procedures and
policies. Complainant was provided several items relating to his duties, including a training
mentor, a step-by-step checklist, general procedures, job aides, draft standard operating
procedures, staff support to answer questions, and one on one meetings, but he did not show a
complete understanding of his job commensurate with an employee onboard for 11 to 12 months.
The statement provides numerous examples of Complainant’s failures to perform to
expectations.

The Agency also submitted copies of emails and photographs in support of its contentions.

Complainant submitted a letter, dated September 4, 2018, challenging the Agency’s response,
providing explanations for or disputing the alleged performance deficiencies.

In its September 17, 2018 FAD, the Agency concluded that the Agency did not breach the
provisions of the agreement, essentially agreeing with and reiterating the prior Agency response,
as discussed above. The Agency also found the record established that management had
sufficient reasons to determine that Complainant’s performance between July 11, 2018 and
August 2, 2018 was unacceptable.

The Agency also noted that Complainant appeared to have alleged that the violation of the
Agreement was retaliatory for his prior EEO activity (accommodation request) and advised that,
if Complainant wants to pursue this allegation as a separate EEO complaint, he should seek EEO
counseling within the appropriate time frames.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that the record contains material misrepresentations and false
statements. He alleges the Agency “resorted to prevarication, exaggeration, and contortion of the
facts to discredit and get rid of [him].” Complainant reiterates his prior contentions and
challenges or disputes the record with respect to his allegedly deficient performance.

Complainant’s numerous assertions include that he has been denied access to emails that would
support his claim; federal statutes require that the Agency provide employees with an
opportunity to improve prior to taking performance-based actions; management refused to
address his deteriorating mental health; and he submitted medical evidence indicating he was
experiencing mental health problems in December 2017 and January and February 2018. He also
alleges that he informed the Chief of Staff that the negative assessment of his performance was
related to a previous appeal and since then, the supervisor had been creating an “aggressive work
environment” in reprisal.
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Complainant also asserts that, while he indicated his mental health symptoms improved, he did
not state that he had fully recovered. While his medical documentation does not indicate his
mental health impacts his work performance, the Agency’s management did not ask him to bring
in medical evidence indicating such a relationship. He notes that the Department of Veterans
Affairs increased his mental health disability rating from 30 to 50 percent.

In response, the Agency asserts that a reasonable accommodation was not part of the settlement
agreement and, furthermore, Complainant did not ask for a specific reasonable accommodation.
However, the Agency ensured Complainant got through the reasonable accommodation process
and Complainant admitted that he was not requesting any specific accommodation and that his
medication had greatly stabilized him.

The Agency also asserts that the agreement was not breached because Complainant’s supervisor
found his performance unacceptable. There was no promise of a formal PPA review conference
or any written explanation. Complainant’s supervisor determined Complainant had failed to
perform because he did not meet expectations for the quality or timeliness of his work, following
instructions, or complying with routine adjudicative and file management procedures and
policies. Complainant’s arguments amount to expressing dissatisfaction with the outcome of the
agreement.

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).

With respect to Complainant’s allegations of breach relating to the performance evaluation, we
find that the agreement, on its face, obligated the Agency to determine whether Complainant’s
performance during the evaluation period met at least the Achieved Expectations standard in all
core competencies and performance goals under his FY 2018 Performance Plan and Appraisal
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(PPA), meaning an overall rating of 3.0 or above. The plain reading of this term required the
Agency to provide a PPA, not only to show that Complainant met or failed to meet the standard
of an overall rating of 3.0, as defined in his FY 2018 PPA, but also to explain how the Agency
determined that he met or failed to meet that standard of performance. As noted above,
Complainant’s supervisor provided a brief summary statement, dated August 2, 2018, indicating
Complainant did not meet expectations in all performance goals or core competencies. However,
this is insufficient to satisfy the Agency’s obligations under the settlement agreement. Therefore,
we find the Agency breached the settlement agreement.

When we find a breach, we have two choices: specific performance or reinstatement of the
underlying complaint. If Complainant chooses specific performance, the Agency is required to
provide him a formal written evaluation under his FY 2018 PPA. Alternatively, should he choose
reinstatement of his underlying complaint, his voluntary resignation would have to be rescinded
and the Agency is required to resume processing of the underlying complaint in accordance with
the following Order. Therefore, we order that Complainant be provided the option of specific
performance of the agreement or rescinding the agreement and reinstating of his underlying
complaint.

With regard to Complainant’s allegations of breach concerning his reasonable accommodation
claim, we find that the settlement agreement does not contain an Agency obligation with respect
to Complainant’s request for reasonable accommodation. The writing is plain and unambiguous
on its face and there is no mention of Complainant’s mental health problems or a reasonable
accommodation within the four corners of the document. If Complainant wanted some term
relating to his mental health disability or a reasonable accommodation, he should have included
such a provision as part of the settlement agreement. See Jenkins-Nye v. Gen. Servs. Admin.,
EEOC Appeal No. 01851903 (Mar. 4, 1987).

However, we find that Complainant, in his August 8, 2018 letter, raised a complaint alleging the
Agency denied his request for a reasonable accommodation for his mental health disability. This
letter constitutes his initial contact with the Agency, as contemplated under 29 C.F.R. §
1614.105, and the Agency has a duty to address this complaint and provide EEO counseling
accordingly.2

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find the Agency breached the terms of the July 11, 2018

2 We reiterate that Complainant’s August 8, 2018 letter should be considered his initial EEO
contact on the reasonable accommodation claim for the purposes of determining timeliness
unless there is evidence that he raised the claim even before that letter.
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settlement agreement and REMAND the underlying EEO complaint for further processing in
according with this decision and the ORDER below.

ORDER
Within fifteen (15) days from the date this decision is issued, the Agency is ordered to notify
Complainant of his option to either: (1) rescind the settlement agreement and have his underlying
complaint reinstated for processing, or (2) obtain specific performance of the agreement. The
Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his
receipt of the Agency's notice within which to notify the Agency of his election. If Complainant
does not timely respond in writing, the Agency shall presume this to mean he chooses option 2.
If Complainant chooses option 1, the Agency shall rescind the settlement agreement and reinstate
the underlying EEO case from the point processing ceased and process it under the procedures
and timeframes set forth in 29 C.F.R. Part 1614.
If Complainant chooses option 2, the Agency shall provide Complainant with a formal written
evaluation under his FY 2018 PPA, including indicating whether he met the standard of
Achieved Expectations and providing an explanation as to that determination. The Agency shall
complete the actions required to implement this option within 15 calendar days after receipt of
Complainant’s election decision.
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.
§§ 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.

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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).
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,
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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

April 17, 2019
Date