[Redacted], Danielle F., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal No. 2022002969 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danielle F.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022002969 Agency No. 63-2022-00040-D DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated April 27, 2022, finding that it was in compliance with the terms of a June 28, 2021 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Census Filed Supervisor in Tampa, Florida. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On June 28, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The June 28, 2021 settlement agreement provided, in pertinent part, that: 3(b) The Decennial Applicant Personnel and Payroll System (DAPPS), which was used to process applications and payroll for the 2020 Decennial Census, contains only the information below regarding Complainant’s employment with the [Agency] during the 2020 Decennial Census. This 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. 2022002969 2 also is to confirm that DAPPS does not share information or otherwise interface with the [Agency’s] other hiring systems. The DAPPS reflects that on July 22, 2019, Complainant entered on duty as a Census Filed Supervisor Trainee, AD, 303, at an hourly rate of $18.50. On August 2, 2019, Complainant was converted to a Census Field Supervisor, AD 303 at the hourly rate of $20.50 and Complainant was terminated for lack of work on January 28, 2020. 3(d) Provide any prospective employer, who contacts the Census Decennial Administrative Branch at [a specified phone number] with a reference consisting of the dates of Complainant’s employment with the Agency, and the title, grade, series, and hourly rate of the position held by Complainant, and, if asked, that she was terminated for lack of work. However, failure to comply with this subparagraph due to ignorance of the Agreement and its terms by any Agency employee does not give rise to a claim of breach of contract by the Complainant. 6. The parties agree to keep the nature and terms of this Agreement confidential. The terms of the Agreement may not be disclosed to any person or entity beyond the persons signing below, except to Complainant’s spouse as applicable, tax consultant or attorney, as required by law, as necessary to implement the terms of the Agreement, or as ordered by a court or administrative body of competent jurisdiction. However, any inadvertent disclosure of information beyond that contemplated here, by an individual unfamiliar with the terms of this Agreement will not be considered a breach of this Agreement…”2 By email to the Agency dated October 6, 2021, Complainant alleged breach of the settlement agreement, and requested that the Agency reinstate the underlying complaint. An EEO Counselor Report reflects that Complainant alleged that the Agency breached provisions 3(b), 3(d), and 6 of the June 2021 settlement agreement. Regarding provision 3(b), Complainant asserted that the Regional Director, Atlanta Regional Census Center (RD), acted as “the interface and [shared] information from the DAPPS system to negatively affect another Census hiring system” regarding a Census Field Supervisor position (21-29-013-FS-AHS-EXT) that she applied for but was not selected. Regarding provisions 3(d) and 6, the EEO Counselor’s Report reflects that Complainant claimed that RD disclosed settlement information to hiring officials which resulted in Complainant being denied a position. Complainant asserts that the Agency should only provide prospective employers with her dates of employment, title, grade series, and hourly rate. 2 Complainant received $53,000 pursuant to the settlement agreement. This provision is not at issue herein. 2022002969 3 In its April 27, 2022 FAD, the Agency found no breach. The Agency found that to the extent Complainant is alleging that she was subjected to retaliation and discrimination regarding not being selected for a Field Supervisor position (21-29-0130FS0AHS-EXT), Complainant filed a separate EEO complaint on this matter (Agency Case No. 63-2021-00522-D).3 Regarding provision 3(b), the Agency found that Complainant “failed to show any unauthorized disclosures, or discussions outside of the normal course of managerial business or attorney client privilege that violate the confines of the settlement agreement. There was no evidence provided to show that DAPPS did anything more than provide Complainant’s date of employment and hourly rate.” Final Decision at 11. The Agency further found that RD or DAPPS has not shared information or “interfaced” with the Agency’s other hiring systems regarding Complainant. Id. In addition, the Agency found no breach of provisions 3(d) and (6). Specifically, the Agency found that the record does not show that a disclosure was made by RD that would constitute a breach of the Agreement. Moreover, the Agency found that “no reference consisting of anything other than the dates of Complainant’s employment with the Agency, and the title, grade series, and hourly rate of the position held by Complainant was shown to have occurred. There has been no proof that anyone asked whether Complainant was terminated and was told anything other than she resigned or was terminated for lack of work.” Final Decision at 12. The instant appeal followed. Complainant requested an extension to submit a brief in support of her appeal. The Commission’s Office of Federal Operations (OFO) responded via email dated May 31, 2022 and granted Complainant an extension until June 20, 2022. Complainant submitted numerous documents subsequent to June 20, 2022 (after the deadline) via the Commission’s public portal. Thus, we decline to consider these documents herein. 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). 3 The Agency also asserted that Complainant’s claim that she was not selected for a Field Supervisor position should be dismissed for alleging the same claim in a prior complaint. 2022002969 4 As an initial matter, we concur with the Agency that Complainant’s claim that she was not selected for a Field Supervisor position due to discrimination and/or retaliation should be processed as a separate complaint. EEOC Regulation 29 C.F.R. § 1614.504(c) provides, in relevant part, that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. Moreover, provision (11) of the settlement agreement provides, in pertinent part, that “[p]ursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination and/or retaliation violate this agreement shall be processed as separate complaints.” In the instant case, we are unable to determine whether the Agency breached the settlement agreement. Complainant alleges that the Agency breached provisions 3(b), 3(d), and 6 when RD provided information to others regarding the June 2021 settlement agreement and the consideration she received under the agreement. Complainant also alleged that DAPPS “interfaced” with other hiring systems. We acknowledge that the record contains an EEO Counselor’s Report. Therein, the Report sets forth that the EEO Counselor spoke with RD who asserted that he does not know Complainant and that he did not breach the settlement agreement. However, the record does not contain any signed statement or affidavit from RD on this matter regarding any alleged disclosures with respect to Complainant’s settlement agreement. In addition, the record does not contain an affidavit from an Agency official involved with the oversight of the DAPPS system in order to establish whether the Agency is in compliance with provision 3(b) regarding what information is contained in DAPPS with respect to Complainant’s prior Agency employment and whether DAPPS shares or interfaces with other Agency hiring systems. Accordingly, we VACATE the Agency’s final decision finding no breach of the June 2021 settlement agreement and we REMAND this matter for a supplemental investigation in accordance with the ORDER below. ORDER Within forty-five (45) calendar days from the date this decision is issued, the Agency shall: 1). Supplement the record with an affidavit from RD as to whether he disclosed information pertaining to the June 2021 settlement agreement in violation of provisions 3(d) and (6). 2) Supplement the record with an affidavit from an employee who has oversight responsibilities with respect to DAPPS. The affidavit shall address what information is contained in DAPPS regarding Complainant’s prior Agency employment and whether DAPPS shares information or interfaces with the Agency’s other hiring systems. 3. The Agency shall then issue a new final decision, with appeal rights to the Commission’s Office Of Federal Operations, concerning whether it breached provisions 3(b), 3(d) and (6) of the settlement agreement. A copy of the new decision must be 2022002969 5 included in the Agency’s compliance report as set forth in the paragraph entitled “Implementation of the Commission’s Decision.” 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. 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 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022002969 6 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. 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 (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. 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. 2022002969 7 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 8, 2022 Date