0420150009
08-09-2016
Caitlyn, H.1 Petitioner, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Caitlyn, H.1
Petitioner,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0420150009
Appeal No. 0120141465
Agency No. 413413006
DECISION ON A PETITION FOR ENFORCEMENT
On March 6, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120141465 (October 16, 2014). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Chief, Public Affairs Operations at the Agency's Office of the Chief of the National Guard Bureau facility in Alexandria, Virginia.
Believing that the Agency subjected her to unlawful discrimination, Petitioner contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 4, 2013, Petitioner and the Agency entered into a settlement agreement (Agreement) to resolve the matter. The Agreement provided, in pertinent part, that the Agency agreed:
(2a) To the greatest extent possible, this [Petitioner] will be consulted in advance
prior to any decisions made affecting the assignments of her subordinates;
(2c) The Acting Deputy Director (AD) shall not communicate directly with [Petitioner's] subordinates, nor direct or request any person to communicate directly with [Petitioner's] subordinates, unless Petitioner consents to such communication .... Any preauthorized communication with the [Petitioner's] subordinates shall be via email with an electronic copy (Cc) to the [Petitioner] unless Petitioner consents to direct communication .... Furthermore, [AD] shall have no tasking authority over the [Petitioner's] subordinates. [AD] shall not, in any communications with [Petitioner's] subordinates, refer to [Petitioner] in any negative or critical manner, nor in any way question [Petitioner's] performance or leadership skills. Furthermore, all of [AD's] communications to [Petitioner's] subordinates which refer or relate to [Petitioner] shall be work related only.
(2d) [AD] shall communicate to [sic] [Petitioner] only in written form, including email. Copies of written communication from [AD] to [Petitioner] shall be sent to [Management Officials 1 & 2 (MOs 1 & 2)] or their successors. Copies of email communications from [AD] to [Petitioner] shall be copied ("cc'd") to [MOs 1 & 2] or their successors.
On January 24, 2014, Petitioner notified the Agency that it was in breach of the Agreement and, after not receiving a timely decision from the Agency, Petitioner appealed to this Commission on March 6, 2014 (Claim 1). The matters raised in Claim 1 have been satisfactorily resolved and are not at issue herein.
Petitioner sent the Agency a second letter dated March 13, 2014, alleging additional breaches by the Agency. Specifically, Petitioner alleged among other things that AD "communicat[ed] with [Petitioner's] subordinates via email without copying her; fail[ed] to copy [MOs 1 & 2] on email correspondence with her; and involve[ed] himself with assignments of her subordinates without discussing his involvement with her beforehand." (Claim 2). The Agency issued a Decision dated June 25, 2014 addressing Claim 2 only, finding, among other things, no breach of clauses 2(a) and 2(d). The Agency did, however, find that clause 2(c) had been breached, but offered no remedy.
Petitioner appealed the Agency's final decision to the Commission, and in Appeal No. 0120141465 (October 16, 2014), the Commission found, among other things, that Petitioner failed to establish a breach of clauses 2(a) and 2(d), but that the Agency breached clause 2(c).
The Commission issued an Order that specified that the Agency had to comply with the settlement agreement and specifically ensure that AD "does not communicate directly with [Petitioner's] subordinates, nor direct or request any person to communicate directly with [Petitioner's] subordinates, unless [Petitioner] consents to such communication. In addition, the Agency shall ensure that the remaining provisions of clause 2(c) and the agreement as a whole are adhered to." The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620150076 on June 24, 2015.
On January 29, 2015, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency breached parts of 2(c), 2(a) and 3(b) of the Agreement. Specifically, Petitioner alleges that the Agency breached parts 2(a) and 2(c) of the Agreement when MOl, MO2 and AD communicated directly with her subordinates about work related matters without her consent and without attempting to consult her beforehand. Petitioner provides email correspondence wherein MOl and MO2 make decisions regarding the assignments of five of her subordinates, allegedly breaching 2(a). Petitioner also includes emails from AD to three of her subordinates dated October 24, 2014, November 28, 2014, January 14, 2015, and January 16, 2015, which she alleges breach both 2(a) and 2(c) as they are direct communications about which she was not informed or cc'd. Petitioner also alleges that the Agency breached part 3(b) which in part requires that "parties agree not to disclose or discuss the fact of settlement with other agency employees." She cites an incident when one of her subordinates informed another employee that the Agency paid her $20,000 in fees, and statements by a different employee informing her subordinates that she filed an EEO claim against AD.
The Agency submitted a compliance report informing the Commission that "[t]he responsible management official [AD] has been issued a directive with regard to appropriate communication with the [Petitioner's] subordinates." The body of the directive (Directive), dated November 13, 2014, in its entirety, is as follows:
Per previous direction you must adhere to the specific terms of the attached settlement agreement, especially all provisions of clause 2(c). All communication traffic to [Petitioner's] division personnel must always go through her unless she preauthorizes such communication. Any communication that can be perceived as directing, tasking or corresponding with her subordinates is prohibited and will subject both you and this organization to findings that we breached the settlement agreement. Strict compliance is non-negotiable and I can't overemphasize the importance of your compliance with all terms of the settlement agreement.
On appeal, the Agency argues that in view of the above Directive, Petitioner's Petition is moot with regard to AD.
The Agency next argues that the actions of MOs 1 & 2 do not constitute breaches of clauses 2(a) and (c) of the Agreement because those clauses refer to AD and not MOs 1 & 2. The Agency contends that:
[P]aragraph 2(a) of the settlement agreement does not apply to [MOs 1 & 2]. Reading the entire settlement agreement in context, it is clear that the gravamen behind the initial Equal Employment Opportunity (EEO) complaint, which was the foundation for the settlement agreement, concerned [AD]. The EEO complaint did not list [MOs 1 & 2] as Responsible Management Officials. Virtually all the terms of the settlement agreement specifically identify [AD] vis-a-vis [Petitioner's] subordinates. To find that the language in paragraph 2(a) would apply to the Director and Deputy Director of a Division, whereby they cannot communicate with their own subordinates without first consulting with [Petitioner], is ludicrous and counter-productive to effective and efficient office management practices and principles.
The Agency further argues that, with regard to any alleged breach of the Agreement by MOs 1 & 2, and with regard to the Agency breaching 3(b) by disclosing the facts of the Agreement to non-parties, the terms of the Agreement and 29 C.F.R. � 1614.504 require that Petitioner first bring such allegations to the attention of the Agency within 30 days of any alleged violation, which Petitioner did not do. The Agency argues that such matters therefore are not properly before this Commission. Finally, the Agency argues that the Agreement only applies to communications between AD and civilian subordinates of Petitioner, but not to any communications between AD and other military personnel, even military personnel who might be subordinates of Petitioner.
With regard to Petitioner's allegations concerning AD contacting Petitioner's subordinates, we find that the Agency has complied with our Order by issuing the November 2014 Directive. With regard to Complainant's allegations concerning breach of the Agreement by disclosing facts of the Agreement in violation of clause 3(b), we agree that this constitutes a new allegation of breach that is not properly addressed in a Petition for Enforcement. The Agency has not investigated this allegation and the record contains insufficient evidence to enable us to make a determination regarding whether or not a breach occurred. We therefore remand this matter to the Agency.
We note further, however, that clause 2(a) does not specifically identify AD or MOs 1 & 2. That clause does state that Petitioner will be consulted in advance prior to any decisions made affecting the assignment of her subordinates and as such any decisions made by MOs 1 & 2 "affecting the assignment of her subordinates" may be included in that restriction since they are not specifically excluded from the clause's mandate. The clause further states, however, that such consultations with Petitioner need occur only "To the greatest extent possible." Whether or not such consultations are possible is a condition that can only be determined by the Agency and as such we find clause 2(a) to be vague and unenforceable. In our Decision, we found that because Petitioner had not specified "when such prohibited assignments allegedly took place, she has not shown they occurred when prior communication with her was possible" Decision, p. 4. We therefore did not need to address the issue of whether or not the clause was enforceable. In the instant case, however, given Petitioner's new evidence specifying when such assignments occurred, whether or not consultation with Petitioner was possible is at issue, and such a determination can only be provided by AD, MO 1 and MO2, the individuals identified by Petitioner as having breached the Agreement. Because Petitioner is not in a position to know when an alleged breach occurred, we find clause 2(a) to be void because it is vague and unenforceable.
Finally we find that, with regard to any allegation that MOs 1 & 2 breached clause 2(c) of the Agreement, we note that by its terms, that clause applies only to AD and not MOs 1 & 2 and hence we find no breach.
CONCLUSION
Following a review of the record we find that the Agency complied with our Order in our prior Decision, EEOC Appeal No. 0120141465, when it issued the November 2014 Directive to AD. We further find that clause 2(a) of the Agreement to be void for vagueness and the clause should be stricken from the Agreement. With regard to Complainant's new allegation of breach regarding clause 3(b), we REMAND the matter to the Agency in accordance with the Order below.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.504. The Agency shall acknowledge to the Petitioner that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall resolve the matter and respond to Petitioner in writing. If the Agency fails to respond, or if Petitioner is not satisfied with the Agency's attempts to resolve the matter, Petitioner may appeal to the Commission for a determination as to whether he Agency has complied with the terms of the settlement agreement. Petitioner may file such an appeal 35 days after she has received notice from the Agency that it has received the remanded claim but must file an appeal within 30 days of her receipt of the Agency's final determination.
A copy of the Agency's letter of acknowledgment to Complainant must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
August 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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