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

Equal Employment Opportunity Commission

Mar 21, 2023

Appeal No. 2022001190 (E.E.O.C. Mar. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregory F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2022001190 Agency No. HC-99-019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated December 27, 2021, 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 Analyst, GS-0343-12, at the Agency’s Defense Contract Management Command facility in Chicago, Illinois. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 2, 2000, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (12) The parties agree that the mediation session, the Resolution Agreement and all terms herein will be kept confidential to the extent required by law, regulation, policy or permitted by this agreement. The parties agree that the Agency has the 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. 2022001190 2 right to disclose the agreement or disclose specific terms of the agreement to those Agency employees it believes have a need to know of the agreement or the terms of the agreement. The parties agree they have the right to disclose the agreement to any Court or Administrative Body mentioned in 2a and b above. The Complainant may divulge the terms to his family, attorney, and business advisors. By letter to the Agency dated January 26, 2021, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that, on February 8, 2002, an Agency attorney shared the settlement agreement with an attorney for the U.S. Army. Complainant further stated that this attorney allegedly admitted it was a breach. At that time, Complainant also stated he was looking for the evidence to confirm the violation. In its FAD of December 27, 2021, the Agency concluded several things. First, it found that Complainant had not made a proper breach allegation in accordance with the terms of the settlement agreement because he had agreed to “return all consideration paid to him by the [A]gency on or before filing his allegations of breach, and specify whether he wishes the terms of the agreement to be specifically implemented or the complaints to be reinstated for further processing from the point the processing ceased.” Next, the Agency found that Complainant’s breach allegation was untimely, pursuant to 29 C.F.R. § 1614.504, reasoning that he first informed the Agency on July 21, 2021, of a breach that allegedly occurred on February 8, 2002. The Agency further determined that, because Complainant had not submitted specific information about the purported breach to the Agency for approximately five months after making the allegation, Complainant’s delay in this regard had constituted a lack of due diligence and his claim was thus barred by the doctrine of laches. Finally, assuming arguendo that Complainant’s breach allegation was raised timely and appropriately, the Agency’s disclosure of the settlement agreement did not constitute breach of the language in paragraph 12 because the Agency determined that its attorney needed to disclose the settlement agreement to an Army attorney to prevent abrogation of the agreement’s terms in another matter before the Commission. The instant appeal followed. 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 Affs., EEOC Request No. 05900795 (Aug. 23, 1990). 2022001190 3 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 (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). The record indicates that Complainant contacted the Agency in writing on July 26, 2021, to allege a breach occurred on February 8, 2002, over 19 years later. Pursuant to 29 C.F.R. § 1614.504(a), a complainant must allege noncompliance within 30 days of when he knew or should have known of the alleged noncompliance. On appeal, Complainant argues that he alleged breach within 30 days of becoming aware of it in 2021. He asserts that, in 2021, he discovered the breach at issue when he performed a keyword search of the Agency attorney’s name in Outlook related to another matter. He maintains he never reviewed these files when he received them because there was no reason to do so. Complainant further asserts that the files all came at the same time and were large and repetitious. Complainant submits a screenshot that suggests that, on October 4, 2006, he received 13 documents, presumably including the document showing the settlement agreement was disclosed in discovery, which is the alleged breach at issue. We have reviewed Complainant’s arguments on appeal and find Complainant’s explanation insufficient to explain such a lengthy lapse in time between when documents were provided to him in 2006 and his allegation of breach in 2021. Furthermore, we find that even if Complainant’s allegation was not barred by the time limitations found in the regulations, his claim of breach would be barred by the doctrine of laches. Laches is an equitable remedy under which an individual’s failure to pursue diligently his course of action could bar his claim. The Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied when the complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Dep’t of Health and Hum. Servs., EEOC Request No. 05901130 (Dec. 27, 1990). In the instant matter, we find that Complainant did not act diligently in the pursuit of his claim. CONCLUSION Accordingly, the Agency’s decision dismissing Complainant’s breach allegation is AFFIRMED. 2022001190 4 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. 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). 2022001190 5 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. 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 21, 2023 Date