[Redacted], Darell B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2023000331 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darell B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2023000331 Agency No. VA-0705-XX08-2019102412-S DECISION On October 21, 2022, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an October 12, 2022 final Agency determination (FAD) that it complied with the terms of the settlement agreement which the parties entered. See 29 C.F.R. §§§ 1614.402, .504(b), and .405. BACKGROUND During the period at issue, Complainant was employed by the Agency as an Equal Opportunity Specialist (Investigator), GS-0260-12 with the Office of Resolution Management (ORM) Diversity and Inclusion, Investigations and Contracting Team (“OCIT”), which handled EEO investigations, including contract ones. OCIT’s office was in Pittsburgh, Pennsylvania, but Complainant’s duty station was in Plainfield, Illinois (100% telework location). Complainant filed an equal employment opportunity (EEO) complaint alleging discrimination. The parties settled the complaint on May 6, 2021, during the EEOC hearings process. The settlement agreement provided, in pertinent part, that: 2.d. The Agency waives the right to take any adverse action against the Complainant in the future for any actions and/or activities the Complainant engaged in prior to the date the parties fully execute the 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. 2023000331 2 settlement agreement. No prior adverse action taken against the Complainant prior to the date of execution of this settlement agreement may be considered should the Agency decided to take a disciplinary or adverse action against the Complainant in the future…. The EEO complaint underlying the settlement agreement concerned, in pertinent part, a July 12, 2018 Admonishment letter, a February 20, 2019 Reprimand letter which was reduced to an Admonishment letter, and an August 8, 2019 Letter of Counseling. At the above times and up to the settlement agreement, Complainant was employed by ORM - Midwest District in Westchester, Illinois. There, he was an Equal Employment Specialist, GS- 0260-12, until being promoted on June 9, 2019, to Equal Employment Specialist (Case Manager), GS-0260-13, where he wrote procedural decisions on EEO complaints.2 The first above two disciplinary actions against Complainant were issued by the District Manager - Midwest District (“District Manager MW”), who at the time of the first discipline his first line supervisor and at the second discipline his second line supervisor. The third disciplinary action was issued by the Assistant District Manager for Procedural Decisions & Case Management (“Assistant District Manager CM/PM - MW”), who was Complainant’s first line supervisor then. The July 12, 2018 Admonishment letter charged Complainant with Inappropriate Conduct. It specified that on May 21, 2018, when discussing his leave status with the Acting Assistant District Manager - MW used a loud voice and disruptive tone asking what her big concern was about his leave and saying he was calm, and 5 to 10 minutes later using the same voice repeating the same question while waving his arms upward. The February 20, 2019 Reprimand letter charged Complainant Failed to Follow Supervisor Instructions when after his Assistant District Manager CM/PM - MW disagreed with his rationale for dismissing a complaint and requested he write a letter accepting it, he refused to do so and only relented to sending an acceptance letter out after the Manager wrote it, had it signed, and directed Complainant to send it. The August 8, 2019 Letter of Counseling advised Complainant he had a pattern of interactions with office colleagues that were abrasive, condescending, and unreceptive to listing to the other party, and gave examples of this with three coworkers. A term of the May 6, 2020 settlement agreement was that the Reprimand letter would be rescinded, and as of the date of the settlement agreement there was no disciplinary action in Complainant’s electronic Official Personnel File, nor any pending or proposed. On October 20, 2021, sometime after Complainant started his virtual OICT position, the OICT Manager, who was Complainant’s first line supervisor, issued him a proposed suspension for 14 calendar days for Conduct Unbecoming a Federal Employee. 2 Per the settlement agreement, effective May 23, 2021, Complainant took a demotion to Equal Opportunity Specialist (Investigator), GS-0260-12, in OICT working 100% virtually and was not required to physically relocate. 2023000331 3 Specifically, in his role as an EEO investigator obtaining an EEO investigatory statement, Complainant sent an instant message to an Agency Nurse Manager in Boise, Idaho, a responsible management official who was a witness, which on its face was intimidating, followed by a telephone conversation where he was argumentative and talked over the witness, making him feel coerced, intimidated, and to make mistakes. The record reflects that on September 27, 2021, Complainant instant messaged the Nurse Manager: … when I do a case, I stab it with a wooden spike, fill its mouth with salt, wring its neck with a garlic necklace, sew its eyes and ears shut with silver metallic thread, line the box with brick powder, nail it shut with silver spikes, chain it to the coffin, chain the coffin to the vault, close the vault in presence of the Exorcist and launch it into space in a missile filled with a nuclear bomb at the Sun. The Nurse Manager filed a Report of Contact. He wrote that he did not know what to think of this, so he called Complainant who told him not to respond to an EEO investigatory affidavit question with an “I don’t know”, but explain why he did not know. The Nurse Manager wrote that when he tried to talk or get a word in, Complainant immediately talked over him using a loud aggressive tone, including warning if the Nurse Manager was in court two years from now and had to answer to a judge what “I don’t know” means, “they are going to put you on the stand and end up charging you!” The Nurse Manager wrote he was shocked to be treated like this, shaken, felt he had no choice but to review his answers to all 97 questions, and realized he misread a date and may have had some inaccuracies which would not have happened but for Complainant’s behavior. The Nurse Manager complained to his local Agency Boise EEO Manager, who on October 1, 2021, emailed the Boise Veterans Affairs Medical Center Director. The email relayed that the Nurse Manager submitted his EEO investigatory affidavit to Complainant in his role as EEO investigator where he indicated on occasion, he could not remember some details of events that occurred one or two years before. The email relayed Complainant followed up with the Nurse Manager by instant message that he needed details immediately or he would go to his managers. The Boise EEO Manager relayed that in the Nurse Manager’s conversation with him, he said the stab instant message made him to feel very intimidated and anxious, and on the same EEO case Complainant was investigating, another responsible management official witness, the Chief, Health Information Management, contacted him the day before citing Complainant’s aggressiveness that made him feel threatened. 2023000331 4 On October 1, 2021, the Boise Veterans Affairs Medical Center Director forwarded the above concern to his supervisor, adding he found Complainant to be the most threatening and aggressive investigator he dealt with based on his emails copied to him and instant messages sent directly to him demanding information with veiled threats if it was not provided.3 The Boise Director’s supervisor forwarded the message to the Assistant Under Secretary for the Veterans Health Administration, who in turn called the Deputy Assistant Secretary for ORM Diversity & Inclusion, Complainant’s third line supervisor, who delegated the matter to the OITC Manager and the Director, Western Region, Complainant’s first and second line supervisors, respectively. The same Director was Complainant’s third line supervisor when he worked Westchester, Illinois, before Complainant took the virtual OICT position. On November 8, 2021, the Director, Western Region issued Complainant a letter sustaining the proposed suspension and deciding to suspend him for 14 calendar days.4 Complainant filed an EEO complaint concerning the suspension and other matters.5 In her EEO investigatory affidavit, in response to an inquiry about her deciding to suspend Complainant, the Director, Western Region stated she did so because the stab instant message was shockingly inappropriate, especially coming from an EEO professional who is to remain neutral and is taught not to pressure a witness. She added this instant message made all the way up to the Assistant Under Secretary for Assistant Under Secretary for the Veterans Health Administration, and everyone who read it was shocked and expressed concern. The Director, Western Region, continued that Complainant’s past and present supervisors, including herself, had discussions with him concerning his aggressive and unprofessional behavior, and one of his past supervisors left ORM Diversity & Inclusion for another federal job, citing Complainant’s behavior as the main reason. She stated that in Complainant’s prior job in as a Case Manager in Westchester, Illinois, there were several complaints from Midwest District employees, as well as Management, about his aggressive behavior. 3 In an October 4, 2021 email by the Boise Director to the OICT Manager and the Director, Western Region and OICT Manager, Complainant’s first and second and first line supervisors, he added that he found the manner, tone, and frequency of Complainant’s communications with him disturbing. 4 Complainant grieved the suspension. In a December 14, 2021 grievance decision, the Deputy Assistant Secretary, ORM Diversity and Inclusion mitigated the 14 calendar day suspension to a 7 calendar day suspension. He found a 14-day calendar day suspension was warranted, and wrote he reduced it to 7 calendar days essentially as an act of mercy. 5 The EEO complaint was investigated and is pending before an EEOC Administrative Judge under Hearing No. 570-2022-00880X. 2023000331 5 In response to the EEO investigator’s inquiry if was disciplined, reprimanded, warned, or counseled prior to the suspension, the Director, Western Region replied he had prior disciplinary actions issued by his previous first and second line supervisors in Westchester, but these actions were removed for expiring or due to a settlement agreement. In response to the EEO investigator’s inquiry of whether she took Complainant’s prior EEO activity into consideration when she suspended him, the Director, Western Region stated no, and that he had a history of threatening and trying to intimidate employees and management officials and continues to do so even today. By letter to the Agency dated May 23, 2022, Complainant alleged the Agency breached the settlement agreement. In a June 12, 2022 affidavit, Complainant contended that the suspension violated the settlement agreement term waiving the Agency’s right to take any adverse action against him in the future for any of his actions or activities prior to the settlement agreement, and that no averse action against him prior to the settlement agreement may be considered should the Agency decide to take a disciplinary or adverse action against him in the future. To support his contention, he cited the statements by the Director, Western Region, in the above paragraph. In its October 12, 2022 FAD, the Agency6 concluded that management did not breach the settlement agreement. It disagreed that the Director, Western Region statement showed she relied on past discipline to support her decision to suspend Complainant for 14 calendar days. The Agency reasoned that no prior discipline was cited or relied on to support progressive discipline in the proposed suspension and suspension decision, there is no requirement that discipline be strictly progressive, and the OTIC Manager, who issued the proposed suspension, stated the suspension for 14 calendar days was within the Agency’s Table of Penalties for discipline. The Agency found that the Director, Western Region statement that past and present supervisors, including herself, discussed with him his aggressive and unprofessional behavior did not undermine her position that she suspended Complainant for the egregious action cited in the suspension decision. The instant appeal followed. On appeal, Complainant argues that when the Director, Western Region, made assertions about his past alleged bullying, this referred his discipline and actions that occurred prior to the settlement agreement, matters which under the settlement agreement would not be considered in future discipline. In reply, the Agency argues that the FAD should be affirmed. 6 To avoid a conflict of interest, the FAD was drafted and issued by the United States Postal Service’s EEO function. 2023000331 6 ANALYSIS Per 29 C.F.R. § 1614.504(a), any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, is binding on both parties. A settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. Herrington v. Defense, EEOC Request No. 05960032 (Dec. 9, 1996). It is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract’s construction. Eggleston v. Veterans Affairs, EEOC Request No. 05900795 (Aug.t 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. Hyon v. USPS, 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. Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). We find that the Agency did not breach the settlement agreement when it suspended him. As required by the settlement agreement, in suspending Complainant the Agency did not consider his prior discipline. It was not cited or relied on in the proposed suspension or suspension decision to justify progressive discipline. And the Agency did not discipline Complainant for any of his actions that occurred prior to the settlement agreement - none of them formed the basis for any charges after the settlement agreement. We acknowledge that some of the writings Complainant identified in the Director, Western Region affidavit come close to the line. But in our judgment, they do not cross over the line of the Agency considering or using as a basis actions or discipline that occurred prior to the settlement agreement to later suspend him. The FAD is AFFIRMED. 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. 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. 2023000331 7 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 (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. 2023000331 8 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 January 26, 2023 Date