0120161659__0120162161
11-22-2016
Harris K.,1 Complainant, v. John O. Brennan, Director, Central Intelligence Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harris K.,1
Complainant,
v.
John O. Brennan,
Director,
Central Intelligence Agency,
Agency.
Appeal Nos. 0120161659 & 0120162161
Agency No. 16-03
DECISION
On April 19, 2016 and June 21, 2016, Complainant filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from final Agency determinations (FADs 1 and 2) dated April 11, 2016 and June 10, 2016, finding that the Agency was in compliance with the terms of the settlement agreement into which the parties entered. We find that these appeals are properly consolidated for decision in accordance with 29 C.F.R. � 1614.606.
BACKGROUND
At the time of events giving rise to his complaint, Complainant served a staffing firm in the designated capacity of Industrial Contractor. Via this arrangement, he served the Agency as a Cleared American Protective Officer.
Believing that the Agency subjected him to unlawful discrimination, Complainant filed a formal equal employment opportunity (EEO) complaint of discrimination alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. On November 17, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. In his report, the EEO counselor indicated that Complainant stopped serving the Agency via the staffing firm on July 9, 2015. In subsequent writings, Complainant wrote that he started a service disabled veteran owned small business in 2011 that employs over 40 people. The settlement agreement provided, in pertinent part, that: ...
2.
a. The Agency shall pay Complainant the sum of $200,000....
b. ...[T]he Agency... agrees to not revoke Complainant's security clearance for any incidents that occur prior to the signing of this agreement, which affords him the ability to work for Agency-sponsored contracts. The Agency further agrees to let Complainant's clearance continue until it reaches its normal expiration date (8 July 2016). Whether the clearance will be renewed at the time of expiration will depend on Complainant's employment circumstances at the time....
c. Within sixty (60) days of the signing of this agreement, the Agency Procurement Executive, or designee, shall 1) communicate to Complainant the steps necessary for small business owners and disabled veteran-owned businesses to be more competitive with Agency contracts; 2) the Procurement Executive, or designee, shall explain the mechanics of how vendor day is organized. Additionally, the Procurement Executive shall invite Complainant to the upcoming vendor day in the spring of 2016 once the date has been established;
d. For any contract jobs to which Complainant applies and which have a connection to the Agency, the Agency agrees to "endorse" Complainant's employment in the following manner:
i. Complainant will provide the company with the following POC [point of contact]: Director of Security, [specified telephone number]. Complainant will tell the company that when contacting the POC, they should provide Complainant's first name and last initial only, if the call will occur on an unclassified line.
ii. The POC will tell the company the following information and only the following information: "Complainant has worked for companies associated with the Agency in the past (June 2003 to the date of signature of this document). His work has always been excellent. The Agency endorses his employment with your company." The Agency will provide no other information to the inquiring company.
iii. This provision will be in effect for a period of 1 year from the date of this agreement....
4. Nondisclosure. The parties agree not to disclose any information concerning this Agreement without prior written permission of the Director, Office of Equal Employment Opportunity. This non-disclosure provision does not prevent the parties from making such appropriate disclosures to Agency officials as may be necessary to the performance of their official duties or to the enforcement of the provision of this Agreement.... Any material and intentional breach of this non-disclosure provision by Complainant may result in the Agency taking action to void this Agreement....
By letter to the Agency dated March 14, 2016, Complainant alleged that the Agency breached terms 2.c.1 and 2.c.2 of the settlement agreement. Regarding term 2.c.1, Complainant contended that the Agency failed to communicate the steps necessary for his business to be more competitive with Agency contracts. He gave numerous examples, such as the Agency not making reference to a database (Intelligence Acquisition Research Center (ARC)) that allows vendors visibility of Agency opportunities, delaying giving him access thereto, not informing him that he needed a TS-SCI clearance to access opportunities for his company and the steps necessary to gain one, and not giving him points of contact for vendors in his local area that currently do business with the Agency, preventing him from networking. Regarding term 2.c.2, Complainant wrote that the Agency did not inform him of the mechanics for Vendor Day, such as the specific times for registration and when the event started, the specific address of the event, and the time line of specific events on Vendor Day.
The Agency's Office of Equal Employment Opportunity (OEEO) authored FAD 1, which was dated April 11, 2016. The Agency found that it complied with the settlement agreement. Regarding term 2.c.1, OEEO wrote that it spoke with the Procurement Executive's designee, who was assigned to work with Complainant on this issue, and she provided OEEO the script she used when she talked to Complainant in January 2016. OEEO wrote the designee stated:
As for competitiveness, the most important aspects for you are to 1) demonstrate that you can provide required services (either as a prime contractor or a subcontractor) at a reasonable cost and 2) remain in good standing with the Agency from a security perspective by upholding the terms of your Secrecy Agreement.
Complainant does not contest that this occurred; rather he argues that giving just two banal obvious steps flouted the settlement agreement and was insufficient. The Agency found this complied with term 2.c.1. It also found that there was no promise in the settlement agreement to give Complainant access to a database, help him or his company obtain a security clearance or to provide him points of contact and vendors in his area. On the latter point the Agency wrote that given the classification and sensitivity of its contacts, it does not typically provide that information.
On term 2.c.2, OEEO wrote that it spoke with the designee and Contracting Officer 1, with the Office of the Procurement Executive, and Complainant was informed of the date and location of Vendor Day, which was May 12, 2016. The Agency wrote that while Complainant had not been formally invited at this point, this was because formal invitations were not yet sent, but it confirmed with Contractor 1 that Complainant was on the list of invitees, and the invitation would contain most of the logistical information he sought. It indicated other information will be given out at Vendor Day, such as point of contact and vendor information.
On appeal from FAD 1, Complainant argued that when he signed the settlement agreement, he understood that the Agency would communicate to him all the steps necessary for his company to become as competitive as possible, and this was not done. He also wrote that while he had been notified of the date and city of Vendor Day, he had not been notified in writing of the details surrounding it.
On appeal from FAD 1, Complainant raised another alleged breach - of the nondisclosure clause of the settlement agreement. He wrote that Contracting Officer 1 was tasked with helping him obtain access to the database (ARC), and when Complainant said that the level of his access was not enough to help his company, Contracting Officer 1 replied that Complainant needed his clearance upgraded to get that kind of visibility. Complainant contended that when he asked Contracting Officer 1 how to start that process, he replied the Agency was not going to do that - it is not part of the deal they made with Complainant. Complainant argued that this showed the Agency disclosed settlement terms to Contracting Officer 1.
On May 16, 2016 and May 17, 2016, Complainant wrote second and third notices of breach. He wrote that during settlement talks the Agency deliberately led him to believe that the settlement term about communicating to him the steps for being more competitive would be beneficial to him, even taking a break to discuss the matter with procurement. He contended that he was given less than two weeks notice about the specifics of Vendor Day, making travel and lodging difficult and more expensive. Complainant indicated that while he attended Vendor Day, he learned after that he was not invited to the first two days, which the Agency advised was for current vendors only. He wrote that the settlement agreement did not provide he would only be invited to "Potential Vendor Day." He contended that had he also been invited to the first two days, he would have networked with vendors to help get his small business in the door.
In the May 16, 2016, notice of breach, Complainant raised another breach claim. He contended that the Agency breached term 2.d.i. Specifically, he alleged that the telephone number in the settlement agreement was not a valid number to the Director of Security's office. Complainant contended that the agreement was for a direct unclassified line to the Director of Security, that his EEO case was highly publicized, and it was his intention to distribute the telephone number on Vendor Day to put any potential business partners at ease on his relationship with the Agency. He wrote that he would prefer to sever his relationship with the Agency and that it reimburse him for years of lost income.
Thereafter, the Agency submitted a brief in opposition to Complainant's appeal of FAD 1. It reiterated the findings in FAD 1 that it complied with informing Complainant on the steps on how to be more competitive. Referring to attached declarations by Contracting Officers 1 and 2, the Agency argued that after FAD 1 it continued to provide Complainant with additional literature and competitive information relevant to the general topic of securing Agency business.
In his declaration, Contracting Officer 2 wrote that he was tasked with helping Complainant attend Vendor Day. To this end, he personally ensured Complainant's invitation and registration packet were mailed, and after Complainant received the documents on or about April 21, 2016, he personally took Complainant's registration information over the telephone to ensure his immediate confirmation for the event instead of the usual mail in instructions. He added that he also sent Complainant a packet of business opportunities and organizational information for his use in preparing for Vendor Day. In his declaration, Contracting Officer 1 stated that he was tasked with helping Complainant obtain access to ARC, a subscriber internet-based web tool available to vendors/potential vendors of the Agency that provides information on acquisition opportunities and conferences upcoming in the year, and Complainant obtained access. Contracting Officer 1 stated that he was not given a copy of the settlement agreement, and was only told that as part of the agreement between the Agency and Complainant, the Agency wanted him to ensure that Complainant had access to ARC.
On June 10, 2016, the Agency's OEEO issued FAD 2. Regarding Vendor Day, the Agency wrote that Day 1 and 2 were reserved for vendors with existing Agency contracts, and these days are generally for training on security issues on existing Agency service contracts, not sales. The Agency wrote that Day 3 is reserved for acquisition opportunities, in which Complainant was a full participant.
On the telephone number issue, the Agency wrote that the number in the settlement agreement was intended by the parties as a placeholder only. OEEO wrote that it spoke with its Deputy Director who stated that beginning from the day of the settlement agreement Complainant was under continuing instructions to continue using his Agency provided direct access phone number, in lieu of the number in the settlement agreement, when arranging calls between the Director of Security and any of his prospective vendors. It wrote that by using this alternate direct access number, OEEO would be able to facilitate the Director of Security contacting his prospective vendors directly and securely. The Agency added that in reality, existing Agency vendors, by virtue of their cleared relationships with the Agency, were already in possession of secure lines and contact information for the Director of Security, making the need for the Agency provided direct access phone number unnecessary.
On appeal from FAD 2, Complainant contended that he never would have agreed to a deal that only included "Potential vendors" Day, and Days 1 and 2 would have provided extremely valuable training on security issues with existing service contracts, giving him valuable insight. On the telephone number issue, Complainant contended that months after signing the settlement agreement and before Vendor Day, he tested the number and learned it did not work. He wrote that he asked for the non-secure direct line to the Director of Security, but the Agency refused, telling him to use the OEEO number. Complainant argued that this was unacceptable - his EEO case got national press attention and the whole point of the telephone number was to separate himself from OEEO and provide reassurance to potential business partners of his relationship with the Agency.
On June 30, 2016, the Agency argued that while Complainant continues to claim his travel accommodations were made more difficult and expensive as a result of his late formal invitation to Vendor Day, he was fully aware of its date and location well before he received his formal invitation. In response to this, Complainant conceded that he was aware of the date, but was only given a city location. Complainant argued that it would not be prudent to make travel arrangements before receiving the formal invitation.
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).
We find that the Agency complied with the settlement agreement. Under Term 2.c.1, the Agency agreed to communicate to Complainant the steps necessary for small business owners and disabled veteran-owned businesses to be more competitive with Agency contracts. Via his examples of what he believed the Agency should have done, Complainant implied that this term concerned the Agency tutoring him on how to apply for business and assisting him through it. We find that the Agency, instead, agreed to communicate how to be more competitive, which is what it did. Moreover, the Agency did take steps on educating Complainant on getting contracts - access to ARC and so forth.
Under term 2.c.2, the Agency agreed to explain to Complainant the mechanics of how Vendor Day is organized and invite him to the upcoming Vendor Day in the spring of 2016 once the date has been established. The record reflects that these things occurred. Complainant was invited to the part of the three-day Vendor Day event that applied to him - May 12, 2016. He does not contest that well before he received his formal invitation he was notified that he was on the invitee list and the date and city of Vendor Day. Further, Complainant attended Vendor Day.
Complainant has not shown that the Agency breached the settlement agreement nondisclosure clause. Contracting Officer 1 stated that he was not given a copy of the settlement agreement, and was only told that as part of the agreement between the Agency and Complainant the Agency wanted him to ensure that Complainant had access to ARC. To the extent this involved some disclosure, it falls under the exemption in the settlement agreement that the nondisclosure provision does not prevent the parties from making disclosures to Agency officials as may be necessary to the performance of their official duties or to the enforcement of the settlement agreement.
Under term 2.d.i & ii the Agency agreed to provide Complainant a point of contact to the Director of Security, at a specified telephone number for potential employers of Complainant. The record reflects that the specified telephone number in the settlement agreement was a non-working number. Complainant does not contest that he was given an alternate direct access telephone number in OEEO so when calls were received there, OEEO would facilitate the Director of Security contacting Complainant's prospective vendors directly and securely. Instead, he argued that this was unacceptable.
We find that the Agency substantially complied with term 2.d.i. The alternate direct access number to OEEO being given to Complainant along with the language in term 2.d that the caller only provide his first name and last initial strongly suggests this was done to ensure the person who received the call knew its purpose and facilitated that the agreed response vouching for Complainant was made. OEEO has oversight of the settlement agreement. Complainant does not contend that when the alternate number was called with the above specified name information that the recipient identified the office as OEEO or that if this occurred he asked that this not occur.
FADs 1 and 2 are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 (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
November 22, 2016
__________________
Date
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.
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0120161659 & 0120162161