[Redacted], Willie P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022001166 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willie P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001166 Agency No. 200J-0537-2019100568 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 17, 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 was an Air Conditioning Equipment Mechanic, 5306, WG-10, at the Agency’s Jesse Brown Medical Center 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 February 19, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part: 2(b) That due to errors in the administration and processing of Complainant’s FY18 PA [(Performance Appraisal)], specifically non-compliance with VA Directive 5013 “Performance Management Systems,” the Agency will submit documentation requesting the FY18 PA that indicates “unacceptable” ratings on 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. 2022001166 2 all elements, as well as for his overall performance, be removed from his eOPF [Electronic Official Personnel Folder]. 2(c) That the Agency provide confirmation to Complainant, within 90 days after executive [sic] of this SA [settlement agreement], the unacceptable PA that was erroneously uploaded is removed from his eOPF. By letter to the Agency postmarked October 4, 2021, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency reinstate his original EEO complaint. Specifically, Complainant alleged that, on August 23, 2021, he notified the EEO Manager of non-compliance and received no response.2 Then, in his letter postmarked October 4, 2021, Complainant alleged that the Agency failed to remove the unacceptable performance appraisal from his eOPF and also forwarded information to a third party. In its FAD of December 17, 2021, the Agency concluded that it was in compliance with the settlement agreement. It submitted that, on December 16, 2021, EEO Manager confirmed that Chief of Recruitment and Placement (“Chief”) had submitted documentation that the Agency had removed the Performance Appraisal in question from Complainant’s eOPF. The Agency also put forward that EEO Manager had confirmed Complainant was notified of the removal of this item. DECISION 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). 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). 2 The record also shows that Complainant followed up with an email to EEO Manager on August 24, 2021. In that email, Complainant alleged that the Agency had not forwarded his Performance Appraisal to the Office of Personnel Management, which was delaying Complainant’s annuity payments. 2022001166 3 In the instant case, Complainant argues on appeal that, when he retired on June 9, 2021, he asked for a copy of his complete retirement folder, and it included the unacceptable Performance Appraisal. He also submits that the Agency did not provide him documentation within 90 days of the execution of the settlement agreement that it had removed the unsatisfactory Performance Appraisal from his eOPF. Thus, he maintains, the Agency breached Sections 2(b) and (c) of the settlement agreement. He then asks the Commission to reverse the Agency’s finding of no breach and to reinstate his original claims. The Agency concedes on appeal that it cannot document when exactly it provided documentation to Complainant that his unsuccessful Performance Appraisal was removed. The Agency contends, however, that Complainant’s unsatisfactory Performance Appraisal was removed in November 2020, as agreed upon, and that Complainant has not shown that it acted in bad faith or that he was harmed by any alleged delay in its notification to him of its compliance with the terms of the settlement agreement. According to an affidavit from Human Resources Specialist, a new Performance Appraisal was added on or about November 18, 2020. Human Resources Specialist also attested that it was his standard practice to remove old documents from the file when he corrects or substitutes them. There are two memos from Chief to the Office of Resolution Management Diversity Inclusion, documenting that the unsatisfactory Performance Appraisal was removed. The first is dated December 16, 2021, and it has another Agency employee’s name in the subject line. The second is dated January 19, 2021, and it bears Complainant’s name in the subject line. The record also provides that, due to disability, Complainant retired from the Agency, effective June 10, 2021. According to HR Specialist 2, Complainant’s retirement payments would not have been affected by an unacceptable Performance Appraisal in his eOPF. We thus find that the Agency has substantially complied with the terms of the agreement. To the extent that the Agency’s actions exceeded the ninety-day time limit in 2(c), regarding documenting that the unsatisfactory Performance Appraisal had been removed from Complainant’s eOPF, there is no indication that Complainant suffered any harm by the delay. The Commission has found substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement that did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Mopsick v. Dep’t of Health and Hum. Servs., EEOC Appeal No. 0120073654 (Aug. 17, 2009) (finding specific compliance when some settlement terms were not completed within the specific time frames where all actions required by the agreement were completed and complainant did not show he was harmed by delay in the agency’s implementation of any of the agreement’s provisions) (citations omitted). As such, we find the agency properly determined that it did not breach the settlement agreement. 2022001166 4 CONCLUSION Accordingly, we AFFIRM the Agency’s decision finding that the settlement agreement was not breached. 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. 2022001166 5 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. 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 2, 2023 Date