[Redacted], Mervin D, 1 Complainant,v.Monty Wilkinson, Acting Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Mar 5, 2021

Appeal No. 2021001835 (E.E.O.C. Mar. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mervin D,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice, Agency. Appeal No. 2021001835 Agency No. OBD-2018-00141 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 23, 2020, finding that it complied with the terms of a January 21, 2020 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked for the Agency as a Trial Attorney in Washington, D.C. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 21, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2) In consideration for the promises of DOJ/CRT set forth in Part 3 of this Agreement, [Complainant] agrees as follows: (c) [Complainant] will execute the Memorandum of Understanding (MOU) at Ex. A and return it with the executed Agreement. 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. 2021001835 2 (3)(a) DOJ/[Civil Rights Division] (CRT) will assign [Complainant] to a nine- month detail with the Disability Rights Section (DRS) beginning February 10, 2020. (4) Voluntary Agreement and Release of Claims: [Complainant] acknowledges that he has read, reviewed, and understood this Agreement in its entirety, had an opportunity to discuss it with counsel, and entered into this agreement freely and voluntarily…” (7) Entire Agreement: The terms set forth in this Agreement constitute the entire Agreement of the parties and may be amended only by an agreement, in writing, signed by the parties. By email to the Agency dated November 23, 2020, Complainant alleged breach, and requested that the settle agreement be voided. Specifically, Complainant asserted that the Agency violated the terms of a Memorandum of Understanding (MOU) , which Complainant states was part of the settlement agreement. CP alleges that in violation of the MOU he was never assigned any Regulatory, Interpretation, and Coordination (RIC) matters during his detail. In addition, Complainant, asserts that Agency Counsel (AC), who signed the settlement agreement, fraudulently induced him to sign the settlement agreement when she stated in an email to him “ you will be in a much better position to get picked up by DRS if you do detail as you will gain experience doing their work and they will get to know you.” Complainant asserts this statement is false. In its December 23, 2020 FAD, the Agency found no breach. Regarding Complainant’s assertion that the Agency breached the settlement agreement by not providing him with RIC work per a term of the MOU, the Agency found that the MOU was never made a part of the January 21, 2020 settlement agreement. Even assuming the MOU was part of the settlement agreement, the Agency found that it substantially complied with the terms of the MOU because it assigned Complainant some work that could be considered as falling in the ambit of RIC matters. The Agency also asserts that this matter is untimely raised because Complainant should have raised these concerns while on detail. Regarding Complainant’s assertion that the Agency fraudulently induced him to sign the settlement agreement based on statements by AC, the Agency found that Complainant knowingly and voluntarily entered into the settlement agreement. The instant appeal followed.2 On appeal, Complainant reiterates his breach claims. 2 Commission records reflect that Complainant previously alleged breach of the same settlement agreement at issue herein and appealed the Agency’s determination finding no breach. OFO affirmed the Agency’s final decisions finding no breach of the settlement agreement. EEOC Appeal Nos. 2020003053 (Oct 13, 2020); 2021000226 (Feb. 9, 2021). 2021001835 3 Complainant asserts that the settlement agreement references the MOU and that he and the Agency understood the MOU “must be signed as part of the settlement agreement.” Complainant also asserts that his claim regarding not be assigned RIC work is not untimely because his detail ended on November 10, 2020 and he alleged breach on November 23, 2020. 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). Complainant has not provided sufficient evidence to invalidate or void the January 21, 2020 settlement agreement. The record contains numerous copies of emails between Complainant and AC regarding settlement negotiations. Specifically, the record contains an email from AC to Complainant dated November 25, 2019. Therein, AC stated to Complainant “Sections get to choose from a pool of applicants-either through open season or vacancy announcements-when they fill available permanent slots. We are not going to trump that process because you are unhappy with your initial section assignment. That said, you will be in a much better position to get picked up by DRS if you do the detail as you will gain experience doing their work and they will get to know you." Complainant has not established that the Agency is in violation of some term of the settlement agreement. In addition, despite Complainant’s assertion, there is no indication that the Agency entered the agreement in bad faith or fraudulently induced him to enter the agreement through misrepresentation. Rather, the record reflects that both parties actively negotiated the terms of the settlement agreement. Moreover, provision (4) of the settlement agreement, provides, in pertinent part, that “[Complainant] acknowledges that he has read, reviewed, and understood this Agreement in its entirety, had an opportunity to discuss it with counsel, and has entered into this Agreement freely and voluntarily…” Based on the foregoing, we will not set aside the settlement agreement. Regarding Complainant’s assertion that the Agency violated a term of the MOU (regarding being assigned RIC matters) and thus is in violation of the settlement agreement, we disagree. 2021001835 4 The settlement agreement did not expressly incorporate the terms of the MOU. The record contains a copy of the January 24, 2020 MOU, a separate document from the January 21, 2020 settlement agreement.3 The MOU provided, in pertinent part, “1. Nature of Assignment. [Complainant] will serve as an attorney in DRS where he will work on a combination of Regulatory, Interpretation, and Coordination (RIC) team matters, Enforcement team matters, and other projects as assigned by the section.” While we acknowledge that the settlement agreement references the MOU and required Complainant to execute the MOU, the settlement agreement did not expressly incorporate the terms of the MOU into the settlement agreement. For example, provision 2(c) of the settlement agreement provides, in pertinent part, that “[Complainant] will execute the Memorandum of Understanding (MOU) at Ex. A and return it with the executed agreement.” Provision (7) of the settlement agreement further provides “[t]he terms set forth in this Agreement constitute the entire Agreement of the parties and may be amended only by an agreement, in writing, signed by the parties.” Based on the foregoing, we do not find that the terms of the MOU were expressly incorporated into the settlement agreement. Thus, Complainant has not shown that the Agency is in breach of the settlement agreement. Accordingly, we AFFIRM the Agency’s final determination finding no beach of the January 21, 2020 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. 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). 3 The signatory for the Agency in the settlement agreement is different from the Agency’s signatories for the MOU. 2021001835 5 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. 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. 2021001835 6 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 5, 2021 Date