Harold M.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

2019002989 (E.E.O.C. Sep. 24, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Harold M.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 2019002989

Agency No. P8-14-0114

DECISION

By Notice of Appeal postmarked April 2, 2019, Complainant timely2 filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated
February 26, 2019, finding it was in compliance with a settlement agreement entered into, to
resolve an underlying EEO complaint of unlawful employment discrimination. The Commission
accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.

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.

2 While the Agency argues that the appeal should be dismissed as untimely filed, we disagree. The
Agency cites a United States Postal Service tracking print-out that states the decision was delivered
to Complainant’s address of record “at 9:12 a.m. on February 26, 2019 in Peoria, AZ 95345.”
However, the Commission has previously found that a generalized reference to a city and zip code,
without further details of the address, is insufficient evidence of receipt by Complainant. See
Complainant v. United States Department of Agriculture (Forest Services), EEOC Appeal No.
0120172673 (June 26, 2018); Candell v. United States Postal Service, EEOC Appeal No.
0120071404 (March 20, 2007). In his appeal form (EEOC Form 573) Complainant identifies
March 4, 2019 as the date he received the Agency’s decision. Therefore, in order to be considered
timely, Complainant had to file his appeal no later than April 3, 2019. As noted above, the
complaint was filed on April 2, 2019.

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BACKGROUND

During the relevant time, Complainant worked as an IT Software Specialist for the Agency’s
Western Region Command Engineering and Analysis – Software Acquisitions Operations
Directorate, in Phoenix, Arizona. Believing that he was subjected to a hostile work environment
based on his disability, Complainant filed a formal EEO complaint in December 2014.

Thereafter, on December 16, 2015, the parties resolved the matter by executing a settlement
agreement. The agreement provided, in pertinent part,3 that:

(1) (g) Mitigate Complainant’s July 23, 2015 Three-Day Suspension Decision to a
Letter of Discipline as defined by Article 29, Section 7 of the Agency CBA.
The Suspension Decision SF-50 will be cancelled and removed from
Complainant’s Official Personnel File (OPF). The Suspension Decision letter
will be changed to a Letter of Discipline, signed by Management, and then
placed in Complainant’s eOPF. This expungement will occur within ninety
(90) calendar days of this Agreement. In addition, the subject Letter of
Discipline, and any documentation still in existence related to the original
suspension, will be removed from Complainant’s eOPF and all supervisory files
two years from the date of the suspension decision (a removal date of July 23,
2017) if Complainant has no further disciplinary issues as delineated under the
DCMA Table of Penalties for Discipline. Further, as part of the mitigation of
the referenced Suspension Decision, the Agency will process the cancellation,
correct Complainant’s time card to reflect Regular Hours, and forward the
backpay request to DFAS within ninety (90) calendar days of this Agreement.

On January 19, 2018, Complainant entered another settlement agreement with the Agency which
resolved two grievances and an appeal4 pending before the Commission. In this agreement the
Agency agreed to:

a. Within thirty (30) calendar days of the effective date of this agreement, [Agency]
will initiate the paperwork necessary to cancel the 1-day suspension, which was
effective on September 5, 2017. The Agency will take the necessary steps to
remove the action from the Electronic Official Personnel Folder (eOPF) and
expunge it from the Civilian Personnel On Line (CPOL) system. This removal
and expungement may take as long as 90 days to complete.

3 The Agency also agreed to transfer Complainant to another position/facility, provide a lump sum
payment of attorney’s fees, and restore leave.

4 EEOC Appeal No. 0120180017. Commission records reflect that, as a result of the agreement,
the appeal was administratively closed on January 25, 2018.
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b. [Complainant] will receive backpay for the one day of scheduled work he was
suspended. Every attempt will be made to ensure payment is made within three
pay periods from the effective date of this agreement.

c. Within thirty (30) calendar days of the effective date of this agreement, [Agency]
will issue a letter rescinding the memorandum entitled “Notice of Permanent
Status of July 23, 2015 Letter of Discipline (LOD) to Employee File”, dated July
20, 2017.

d. Within thirty (30) calendar days of the effective date of this agreement, the
Agency will take the necessary steps to remove the Letter of Discipline (LOD)
dated July 23, 2015, from [Complainant’s] eOPF and expunge it from the CPOL
system. Actual removal and expungement may take as long as 90 days.

e. Within thirty (30) calendar days of the effective date of this agreement, the
Agency will issue a Letter of Warning and Instruction (LOWI) based on the
allegation of disrespectful conduct which occurred on July 6, 2017.

f. The LOWI will be maintained in Complainant’s supervisor’s folder until July 31,
2018.

In a memorandum dated May 23, 2018, Consolidated Adjudications Facility (CAF) informed
Complainant of its intent to revoke eligibility for access to classified information and/or
assignment to duties that have been designated national security sensitive. Specifically, CAF made
reference to a January 2015 reprimand, as well as the July 23, 2015 Three-day Suspension and
September 5, 2017 One-day Suspension.

Believing that the memorandum showed the Agency to have breached the agreement, by citing the
Three-day Suspension (provision 1 (g) of December 2015 agreement) and the One-day Suspension
(provision a. in the January 2018 agreement), Complainant contacted the Agency. To resolve his
breach allegations, Complainant requested that his prior EEOC appeal be reinstated.

On July 6, 2018, the Agency issued a decision finding no breach of either settlement agreement.
The Agency reasoned that it was obligated to remove the disciplinary actions from eOPF,
supervisory files, and the Civilian Personnel Online (CPOL), but that no reference was made to
CAF or any other location where the documents may be kept. Complainant appealed the decision
to the Commission.

In our prior decision, we were unable to properly assess whether a breach had occurred based on
the record before us. While acknowledging that the May 23, 2018 memo from CAF “references
the July 23, 2015 decision to suspend Complainant for three days and Complainant’s one-day
suspension effective September 5, 2017”, there was no information indicating who provided the
information to CAF and when. See EEOC Appeal No. 0120182735 (Nov. 29, 2018). The matter
was remanded to the Agency for a supplemental investigation. See id.
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In particular, the Agency was required to obtain documentation and/or affidavits regarding the
Agency’s source for providing CAF with the relevant disciplinary documents, as well as the date
the information was provided. See id.

On February 15, 2019, in accordance with our order, the Agency issued a new decision. According
to the Agency, the Notice of Proposed Reprimand (12/1914) and Amended Proposal for
Suspension Letter (6/11/15) were submitted to CAF on August 28, 2015, approximately eighty
days before the December 2015 agreement was signed. Similarly, the “Notice of Proposed
Suspension (7/20/17) and Letter of Discipline (7/23/15) in lieu of issuance of a Letter of Warning
and Instruction to be maintain on file until July 31, 2018”, were provided to CAF on August 30,
2017, months before the January 2018 agreement was entered. Further, the agreements themselves
were given to CAF as mitigating information. The Agency explained that the materials were
submitted to CAF by the Security Office, as it is required to do so. CAF is the “sole authority for
rendering national security eligibility determination decision” and the Agency contends that it
“does not have the authority to rescind documents submitted to CAF”. For that reason, asserted
the Agency, neither agreement made such a promise.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

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 response to Complainant’s appeal, the Agency argues that both agreements contain
“unambiguous language” that detailed expungement efforts for Complainant’s eOPF, CPOL, and
supervisor files. To wit, the Agency asserted that “there is no ambiguity that might allow the
parties’ intent to be construed more broadly, so as to also encompass DoD CAF’s security
clearance eligibility authority.” Additionally, the Agency highlights that the information was
provided to CAF prior to the execution of the agreements. The Agency asserts that the settlement
agreements “do not serve to nullify the national security considerations that exist under the
exclusive purview of CAF”, and beyond the Commission’s jurisdiction.

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We find that the retention of the rescinded disciplinary actions by CAF, even though no longer
within the control of the Agency, violated the overall intent and spirit of the agreements.
Complainant withdrew his underlying EEO complaints in exchange for, as Complainant describes,
“a clean record which would not negatively affect my current or future [federal] employment. . .”.
The Commission reached a similar conclusion in Hilda A. Dep’t of Homeland Security
(Citizenship and Immigration Services), EEOC Appeal No. 0120180806 (April 6, 2018). In that
case, the agreement required Agency to rescind a removal and replace it with a voluntary
resignation. When Agency later misinformed a potential new employer that Complainant had been
terminated, the Agency argued that because the settlement did not contain non-disclosure
provision, its actions did not constitute breach. See id. Commission found Agency’s actions denied
Complainant the neutral resignation contemplated by the settlement and therefore was a violation.
See id.

Significantly, at the time the agreements were executed, as noted by the Agency itself, the
disciplinary documentation had already been given to CAF, thereby defeating the purpose of the
agreement provisions. Having such knowledge at the time the agreements were entered illustrates
bad faith on the part of the Agency. The Commission has previously found that bad faith in
negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Security
Admin., EEOC Request No. 05950169 (June 12, 1997); Dupuich v. Dep't of the Army, EEOC
Appeal No. 0120073901 (Nov. 2, 2007) (where agreement language required Agency to expunge
documents from personnel files, but did not specifically prohibit the Agency from retaining copies,
Commission found leaving copies of the documents out on a desk “defeated the purpose of the
agreement and is evidence of bad faith.”)

After a finding of breach, there are two possible remedies: 1) reinstate the underlying complaint
or 2) order specific performance. See Adina P. v. Dep't of the Army, EEOC Appeal No.
0120172320 (Oct. 3, 2017). In the unique circumstances before us, however, both options are
problematic.

The Commission has stated that when reinstatement of a complaint is ordered, it has required the
restoration of status quo ante, i.e., that a complainant does not retain any benefits received under
the settlement agreement. See Holmes v. Department of Agriculture, EEOC Appeal No. 01962207
(May 6, 1999). The January 2018 settlement agreement, however, was entered simply to resolve
an earlier allegation of breach regarding the December 2015 settlement, rather than a new
complaint of discrimination. Therefore, reinstatement of the underlying complaint, as expressly
preferred by Complainant, would require his return to the status quo ante (i.e. a return of all benefits
provided under the December 2015 agreement). In light of our finding of bad faith and breach by
the Agency, it seems neither fitting, nor practical, to require Complainant to return monies, leave,
reassignment, etc. received approximately four years earlier.

Similarly, due to the requirements of the breach provisions, specific performance is also a flawed
resolution. The Agency was required to remove documents related to particular disciplinary
actions. It divulged such information and cannot retract the disclosure.

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Therefore, based on the particular circumstances of this case, we find the appropriate remedy is to
allow reinstatement of the underlying hostile work environment complaint (Agency Case No. P8-
14-0114) without requiring a return to status quo ante.

CONCLUSION

The Agency’s decision finding it was in compliance with the terms of the settlement agreements
was improper and is hereby REVERSED. The matter is REMANDED to the Agency for further
processing as set forth in the ORDER below.

ORDER
The Agency is ORDERED to resume processing of the underlying complaint from the point where
processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and
resumed processing of the underlying complaint.

A copy of the Agency letter of acknowledgement must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
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Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision.
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In the alternative, you may file a civil action after one hundred and eighty (180) calendar days
of the date you filed your complaint with the Agency or filed your appeal with the Commission.
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. 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

September 24, 2019
Date