Emiko S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Mar 15, 2019

2019001171 (E.E.O.C. Mar. 15, 2019)

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.
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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,
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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
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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.

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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 (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.

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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