Kellye C,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 6, 2020

2019003229 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kellye C,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2019003229 Agency No. 6X1S1800677T DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a March 12, 2019 final agency decision (“FAD”) that found the Agency 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 During the relevant time period, Complainant worked as a Computer Test Manager, NH-III, in the 517th Software Maintenance Squadron (“SMXS”) at Peterson Air Force Base in Colorado. On November 15, 2018, Complainant and the Agency entered into a negotiated, binding settlement agreement (“Agreement”) to resolve a discrimination complaint that Complainant raised with an EEO Counselor. The responding management officials included the Division Chief, NH-IV, (“RMO”) for the Operations Support and Sustainment Division, SMC/MCL MILSTCOM. RMO was among the management officials that signed the Agreement. The portion of the Agreement at issue is Provision II, Paragraph E which states: 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. 2020002169 2 II(E) In no later than 60 days, [RMO] will contact the Contracting Officer(s) for the relevant contracts to direct Agency communication with the contractors. This communication will clearly re-emphasize the Air Force's policy regarding requirements for a workplace free from discrimination and harassment in accordance with Air Force policy. One of the functions of the 517th SMXS was to enter into Public Private Partnerships (“PPPs”) with customer organizations to provide them with configuration management and other services. When the alleged discrimination in the complaint underlying this Agreement occurred, Complainant was assigned to the LM Corporation PPP. The LM Corporation was also on contract with the Agency’s MILSATCOM Operations Support and Sustainment Division (“SMC/MCL”). Complainant supported MILSATCOM Operations SMC/MCL testing, so she worked with and assisted SMC/MCL employees and their contractors, even though she officially worked on behalf of LM Corporation and reported to supervisors within the 517th SMXS. RMO was not in Complainant’s chain of command, however, he was named in Complainant’s complaint because he was Chief, SMC/MCL MILSATCOM, and the underlying complaint involved SMC/MCL contractors. On November 15, 2015, RMO signed the Agreement, which obligated him to perform the action in II(E). According to the Agency, RMO completed these obligations in an email communication he sent on January 14, 2019. A copy was provided to Complainant’s attorney, with the stipulation that Complainant was not to view the email. On February 11, 2019, Complainant contacted the Agency in writing, alleging that it was in breach of Provision II(E) of the Agreement, and requesting that the Agency specifically implement its terms.2 Specifically, Complainant challenges RMO’s January 14, 2019 email because its recipients were not “Contracting Officers for the relevant contracts,” as required under II(E). She also states that the Agency failed to provide evidence that the content of the email met the II(E) requirement of “clearly re-emphasizing” the Agency’s anti-harassment and discrimination policies. Complainant was not permitted to read the email, and, despite her inquiries with Management, contractors, and the EEO Officer assigned to her case, could not confirm that the II(E) requirements were met. Complainant states that she has reason to believe RMO did not comply with II(E) because she has experienced harassment from a contractor under RMO’s chain of command after he sent the email. The Agency’s FAD concluded that it fully complied with the terms of the Agreement. The instant appeal followed. 3 2 Complainant’s February 11, 2019 notice alleged that the Agency was in breach of Provisions II(C), II(D), and II(E), however, on appeal, Complainant alleges breach of II(E) only. 3 The Agency provided Complainant with a “Notice of Appeal” Form that includes a space for her social security number. Commission policy dictates that EEO complaint files are not to include non-relevant personal identifying information, including social security numbers. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD 110), at Ch. 2020002169 3 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 (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 Affairs, 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. United States 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). Substantial Compliance 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 which 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. Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009)(citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274(Apr. 25, 1996)) other citations omitted. With respect to the content of the Agency’s communications with the Contracting Officers, on January 14, 2019, Complainant’s second level supervisor and RMO emailed a Joint Memorandum for the Record (“MFR”) entitled “Policy on Workplace Environment” to the 517th SMEX and SMC/MCL (including Contracting Officials) respectively. The MFR clearly re- emphasized the Agency’s policy regarding discrimination and harassment in the workplace, but did not include instructions on how employees were to report instances of discrimination or harassment. On appeal, the Agency demonstrated that Complainant’s first level supervisor rectified this omission by holding a Director’s Call on March 21, 2019. Among other things, the call and the accompanying slides explained in detail the reporting and escalation process (including the right to pursue a claim with the EEOC), for employees assigned to PPPs, where the chain of command may not be clear. VIII ¶ C (Aug. 5, 2015). The current “Notice of Appeal” Form, provided in EEO-MD 110, Appendix O, is available at https://www.eeoc.gov/federal-sector/management-directive/notice- appeal-agency-equal-employment-opportunity-commission. 2020002169 4 By sending the MFR to the SMC/MCL employees, including Contracting Officials, RMO substantially complied with the portion of II(E) requiring him to “clearly re-emphasize the Agency’s policy regarding requirements for a workplace free from discrimination and harassment.” Although RMO did not conduct the March 21, 2019 Director’s Call, it had the effect of providing the remaining information to the Contracting Officials, which Complainant noted was missing from the MFR. As for whether RMO contacted the correct individuals under II(E), the record supports Complainant’s allegation that RMO failed to contact the “Contracting Officer(s) of the relevant contracts.” On appeal, the Agency provides a copy of RMO’s January 14, 2019 email, which Complainant was previously not authorized to view, as well as a statement from RMO identifying the email’s four recipients as the onsite contract leads for LM Corporation, Odyssey, LinQuest, and WPL. The email indicated that the recipients were contractors, and included the MFR, as they would not have received his department-wide email. RMO’s email also provided the contractors with directions on reporting harassment and discrimination, stating: “anything that you cannot resolve within your chain of command please contact me or [management official] or your contract lead.” In the documentation provided on appeal, RMO acknowledges that he did not contact the Contracting Officials as required under II(E), explaining, “contracting felt it was best to send [the MFR] this way [versus] a formal Procurement Contracting Officer letter.” Although RMO did not contact the Contract Officers in accordance with II(E), we find that he demonstrated substantial compliance with the Agreement, given that under II(E), the purpose of RMO’s contact with the Contracting Officers was “to direct Agency communication with the contractors.” In other words, instead of instructing Contract Officers to inform the contractors of the Agency’s policies on Harassment and Discrimination, as required under II(E), RMO informed the contractors himself. Significantly, Provision II(E) is silent with respect to which “Contracting Officer(s)” RMO was required to contact, as it does not name specific individuals or identify which contracts were “the relevant contracts.” Further, all Contracting Officials under RMO received the relevant information via the department-wide MFR and Director’s Call. Thus, RMO’s decision to contact the contract leads directly instead of instructing the Contracting Officers to do so did not undermine its purpose or effect of the Agreement. New Issue Raised on Appeal On appeal, Complainant raises a new claim of harassment, alleging that a contractor working on projects under RMO’s supervision has prevented her from doing her job and created a hostile work environment. As the issue before us concerns a settlement agreement, we will not adjudicate Complainant’s harassment claim in this Decision. If Complainant wishes to pursue this claim in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). 2020002169 5 CONCLUSION Accordingly, the Agency’s finding that it was not in breach of the Agreement is AFFIRMED. 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 (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. 2020002169 6 “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 6, 2020 Date