Emiko S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.Download PDFEqual Employment Opportunity CommissionMar 15, 20192019001171 (E.E.O.C. Mar. 15, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emiko S.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2019001171 Agency No. C18007 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a September 24, 2018 final agency decision (“FAD”) that found the Agency 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 an Office Automation Assistant, GS-06, at the Northrup Grumman Aerospace Systems (“NGAS”) resident office in Melbourne, Florida. On August 17, 2018, Complainant and the Agency entered into a settlement agreement (“Agreement”) in order to resolve several EEO actions (Agency Case Nos. CIS007, NG17003, and MA16008) she had raised with the Agency.2 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 At the time, Agency Case No. MA16008 was pending appeal before the Commission under EEOC Appeal No. 0120180566 (Nov. 29, 2018); Complainant voluntarily withdrew all of her EEO complaints and appellate actions in accordance with Provision 2(a) of the Agreement. 2019001171 2 As a threshold requirement, when she entered the Agreement, Complainant also submitted paperwork reflecting her resignation from the Agency effective January 4, 2019, which she agreed would be irrevocable. (Provisions 2(d) and 2(f)). Complainant further agreed to begin “out-processing” from her position on August 17, 2018. (Provision 2(g)). The Agency agreed to allow Complainant to use the remainder of her leave and place her on leave without pay status (“LWOP”) from August 20, 2018 through January 4, 2019, unless Complainant found new employment before then. (Provision 3(a)). On August 21, 2018, the Branch Manager sent an email to 60 Agency employees in two NGAS offices, which stated, in its entirety: Hi Everyone! [Complainant] is on extended leave and will no longer be in the office. She has submitted her office access card and is no longer allowed in our office suite. In addition, if anyone calls as to an employment reference, please refer the caller to me. Complainant contends that the email breached the following provisions of the Agreement: 2(g) Out-processing from position. Complainant agrees to out-process from her position on August 17, 2018, which shall include the return of all government property, including but not limited to the Agency CAC card; government issued credit card; government issued computer and associated equipment; and to perform as directed all other tasks deemed necessary to complete this process. Complainant recognizes, and the Agency agrees to maintain her CAC and government issued credit card at the Field Audit Office (“FAO”) until January 4, 2019. 3(c) Employment Inquiries. Inquiries received as contemplated by paragraph 2(h) above, will confirm that the Complainant was an employee of the Agency; the dates of her service with the Agency; her position title and grade; and that the Complainant resigned (if inquiry is after January 4, 2019). No derogatory information or information concerning her performance will be provided. The Agency shall not be liable to the Complainant for any information except as provided through the procedures provided in this subsection or those addressed to Complaint's FAO Manager and that Complainant shall solely bear any risk incurred by seeking references from any other person. 5 Confidentiality of Agreement Terms. Both the Agency and the Complainant agree that the terms of this Settlement Agreement will remain private and confidential and that neither party shall divulge the terms of this agreement to any third-parties or any person, except as directly necessary to carry out the terms of this agreement, or as ordered in a court or administrative body of competent jurisdiction, or as required in connection with any bona fide security or law enforcement inquiries, or as otherwise provided for in this Settlement Agreement. Notwithstanding, Complainant may disclose the terms of this agreement to her spouse and immediate family, attorneys, 2019001171 3 tax preparers and to relevant tax authorities. The Parties may further disclose the terms of this agreement to the EEOC, and to the extent necessary for purposes of enforcement in the event of breach and/or compliance proceedings, or in the event of alleged reprisal. On September 4, 2018, Complainant notified the Agency in writing that it was in breach of the Agreement, and requested that her underlying EEO complaints be reinstated for processing. In its September 24, 2018 FAD, the Agency concluded that its actions were consistent with its obligation under the Agreement, and therefore no breach occurred. 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 Affairs, 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. United States 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). Breach Claims Complainant’s breach allegations all arise from the Branch Manager’s August 21, 2018 email to 60 Agency employees, which she argues was unnecessary and a deviation from Agency policy. According to Complainant, Complainant during her four years working for the Agency, including on-boarding and out-processing other employees, she never witnessed an Agency personnel procedure that involved notifying “60 office staff throughout the state.” For Provision 2(g), Complainant argues that an email notifying 60 people that she had turned in her credentials was a breach of the Agreement because her credentials were “no one’s business besides a few members of management.” Additionally, Complainant argues that the tone of the August 21, 2018 email, particularly the statement that she is “no longer allowed in our office suite,” indicated that she was “fired for doing something wrong.” Complainant alleges that she received a number of texts from colleagues when they received the email. The plain language for Provision 2(g) contains instructions for Complainant only, and is silent on the matters 2019001171 4 Complainant raises with respect to the Agency. Moreover, while Branch Manager’s phrasing in the August 21, 2018 email may have been insensitive, but it does not constitute a breach of Provision 2(g). For Provision 3(c), Complainant argues that it was unnecessary for the Agency to provide 60 Agency employees with instructions concerning employment inquiries because she provided the Agency with the names of three employees, including the Branch Manager, “that could have conceivably been contacted regarding employment references.” Also, the Agreement named one individual, the Management Employee Relations Specialist (“MERS”) as the sole point of contact for Complainant to “direct all inquiries from outside entities as to her employment with the Agency.” (Provision 2(h)). As with Provision 2(g) the plain language of Provision 3(c) is silent with respect to the matters raised by Complainant, therefore, we find no breach of Provision 3(c) occurred. With regard to Provision 5, Complainant argues that the August 21, 2018 email improperly disclosed confidential terms of the Agreement by including the phrases “submitted her office access card” (Provision 2(g)) and “if anyone calls as to an employment reference, please refer the caller to me” (Provision 3(c)). The email makes no reference to the Agreement, nor does it hint that the instructions and information it is provides are based on a settlement agreement. Given that in context, an individual reading the email would not be aware of the circumstances of Complainant’s departure from the Agency, we find no breach for Provision 5. Subsequent Acts of Retaliation Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. A fair reading of Complainant’s breach allegations indicate that she is also alleging reprisal. She repeatedly compares her treatment after engaging in EEO activity, particularly with regard to discretion and application of Agency policy to favorable treatment of former colleagues undergoing personnel actions. As the tone and content of the August 21, 2018 email are not under the purview of the Agreement, we cannot adjudicate Complainant’s reprisal allegation here. If Complainant intended to raise a claim of retaliation, Complainant should contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. CONCLUSION Accordingly, we AFFIRM the Agency’s finding that it did not breach the Agreement. 2019001171 5 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 (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. 2019001171 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 March 15, 2019 Date Copy with citationCopy as parenthetical citation