[Redacted], Bertie J., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Dec 20, 2022

Appeal No. 2022004044 (E.E.O.C. Dec. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bertie J.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2022004044 Agency No. 2021-CON-103 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated June 17, 2022, 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 an Equal Employment Opportunity Specialist/Special Emphasis Program Manager, NH-0206-III, at the Agency’s facility in Fort Lee, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 3, 2022, Complainant and the Agency entered into a settlement agreement (“the NSA”) to resolve the matter. The NSA provided, in pertinent part, that the Agency would temporarily detail Complainant, and further 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. 2022004044 2 Paragraph 3(a)(1). During the detail, the DCMA EEO Director may request work to be performed by the Complainant, as well as review any work that the Complainant has performed. Should there be a need for the DCMA EEO Director to communicate with the Complainant about any assigned work, such communications will be conducted through the TFPA Policy Branch supervisor, and not directly with the Complainant. If [name], the TFPA supervisor is not readily available, the DCMA EEO Director, may also immediately request assistance from other Total Force management officials including, the Director, TFP (Mr. [ ]), the Director, TFL (Mr. [ ]), or Ms. [ ] (currently, the Acting TF Executive Director). By letter to the Agency dated May 3, 2022, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to abide by Paragraph 3(a)(1) of the NSA, when on April 14, 2022, DCMA EEO Director joined an MS Teams meeting being conducted by Complainant, despite not having been invited to the meeting by Complainant, and then participated in the meeting during the question-and-answer portion by introducing herself and interjecting comments. Complainant acknowledged that DCMA EEO Director did not speak to her directly. However, she stated that two employees asked Complainant a question and DCMA EEO Director started talking and indicated she wanted to add to the discussion. In its June 17, 2022 FAD, the Agency concluded there was no breach of the NSA because DCMA EEO Director did not directly engage Complainant or communicate with her. The FAD noted that in order to ensure compliance with the NSA, the Agency had reminded DCMA EEO Director not to have any direct contact with Complainant during her detail. Complainant filed the instant appeal. On appeal, Complainant contends that per Paragraph 3(a)(1) of the NSA, DCMA EEO Director was directed to have no contact with Complainant. However, DCMA EEO Director inserted herself into the quarterly meeting Complainant was conducting with Special Emphasis Program Coordinators, although she had not been invited. Complainant contends this was very alarming and distracting and she was not expecting DCMA EEO Director to be present based on the terms of the NSA. She stated she found DCMA EEO Director’s attendance to be a form of bullying because DCMA EEO Director knew this meeting was going to occur, but DCMA EEO Director did not follow the proper coordination with TFPA Policy Branch Supervisor or others. Complainant also argues that DCMA EEO Director’s presence in the meeting affected Complainant’s ability to further interact in the meeting since the Agency had directed her not to directly contact DCMA EEO Director. The Agency contends on appeal that even if Complainant’s allegations are true, none of them can be categorized as a breach of the NSA because the NSA only prohibits DCMA EEO Director from directly contacting Complainant concerning any assigned work. The Agency argues that Complainant’s interpretation of the NSA is not within the four corners of the document. 2022004044 3 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). In the instant case, Complainant is asserting the Agency breached the NSA when DCMA EEO Director joined her MS Teams meeting because Paragraph 3(a)(1) prohibits DCMA EEO Director from contacting Complainant directly. However, we agree with the Agency that the plain and unambiguous language of the NSA only restricts communications about work DCMA EEO Director has assigned to the Complainant. The allegations raised by Complainant do not show that DCMA EEO Director contacted Complainant directly about assigned work. In settlement breach cases, the burden is always placed on the party alleging breach to establish that a breach has occurred. See Mike T v. Dep’t of Homeland Security, EEOC Request No. 0520140553 (Mar. 15 2017); Porter v. U.S. Postal Serv., EEOC Appeal No. 01A54699 (Dec. 20, 2005). Complainant has not done so here. CONCLUSION After a thorough review of the record, and for the foregoing reasons, the Commission AFFIRMS the Agency's June 17, 2022 final determination finding no breach of the settlement agreement. 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. 2022004044 4 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. 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. 2022004044 5 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 December 20, 2022 Date