[Redacted], Elliot M., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004742 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliot M.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022004742 Agency No. 6WOB1900794 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated July 25, 2022, finding that the Agency failed to act in good faith in executing the terms of the settlement but that compliance with the terms of the settlement was now impossible. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Cook at the Agency’s US Air Force Academy Support Squadron facility in Colorado Springs, Colorado. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 5, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: A. The Agency agrees to offer Complainant [a] transfer to a WG-7404-08 Cook position on the night shift when a WG-7404-08 position on the night shift becomes available. 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. 2022004742 2 C. The agreement is for the Agency to offer Complainant to change shifts, from the day shift to the night shift. The Complainant understands that the Agency has not agreed to offer Complainant a different position. E. This Agreement [is] only to offer the Complainant one time, when the first opening is available, to move to the night shift when and if a position on the night shift becomes available. This Agreement does not constitute an ongoing obligation to continue to offer the Complainant a position on the night shift if the Complainant turns down the Agency initial offer to transfer to the night shift. The Agency is not otherwise obligated to transfer the Complainant to the night shift. By letter to the Agency dated May 23, 2022, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency did not act in good faith because after the settlement agreement was signed, the Agency stopped filling WG-08 positions on the night shift and converted all the night shift positions to WL-08 positions. Prior to that, on May 19, 2022, Complainant submitted a notice of resignation to his supervisor effective May 25, 2022, citing the Agency’s breach of the settlement agreement as the reason. In response, Complainant’s supervisor, the Operations Chief, stated that he accepted Complainant’s resignation “effective immediately,” rather than on May 25, 2022. In its July 25, 2022 FAD, the Agency found that the evidence suggested that the Agency had not acted in good faith in executing the terms of the settlement because while there was insufficient evidence that the Agency had already planned to convert the WG-08 positions on the night shift to WL-08 positions, which would require a promotion, Complainant’s supervisor, the Operations Chief, was aware of the terms of the settlement but when a WG-08 night shift position became available at some point on the same day in which Complainant submitted his resignation, the Operations Chief did not take any action to try to contact Complainant and offer him the position before converting the WG-08 opening to a WL-08 position. The Agency concluded, however, that there was “no practical remedy which can be implemented to rectify this matter,” because all of the night shift WG-08 positions had been converted as planned because of a management decision due to mission requirements. The Agency therefore found the Agency was in breach of the settlement. Complainant appealed the Agency’s decision, seeking redress. In response, the Agency argues as an initial matter that Complainant’s appeal should be dismissed as untimely because the Agency’s decision was dated July 25, 2022, and Complainant did not file his appeal until September 6, 2022. In the alternative, the Agency now argues on appeal that Complainant did not establish a breach of the settlement. 2022004742 3 ANALYSIS Timeliness of the Appeal The regulation set forth in 29 C.F.R. § 1614.402(a) provides, in pertinent part, that a complainant's appeal must be filed within 30 days of receipt of an agency’s final decision. Here, the Agency’s decision is dated July 25, 2022. The Agency’s decision included a notice that Complainant could file an appeal to the Commission within 30 days of the date on the decision letter. Complainant filed the instant appeal on September 6, 2022, which the Agency contends is untimely. Contrary to the Agency’s argument, the record before us does not support a finding that Complainant’s appeal is untimely. The record contains an automatic notification sent to the Operations Chief on August 10, 2022, notifying him that Complainant had picked up the electronic file of the Agency’s decision. Complainant filed his appeal on September 6, 2022, within 30 days of his receipt of the Agency’s decision. We therefore find Complainant’s appeal to be timely. Breach of the Settlement 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). As an initial matter, we reject the Agency’s argument on appeal that Complainant did not establish a breach of the settlement. The Agency’s argument is disingenuous and flatly contradicts the Agency’s own final decision finding that the Agency was in breach of the settlement. The Agency is bound by its own final decision and cannot now argue to the contrary. We emphasize, therefore, that in this case, there is no dispute as to whether a breach of the settlement has occurred. See Rosie T. v. Dep’t of the Army, EEOC Appeal No. 2022000162 (Nov. 3, 2022). The only issue remaining after the Agency’s decision is the remedy to which Complainant is entitled. 2022004742 4 Here, the Agency, in its final decision, conceded not only that the Agency was in breach of the settlement but that it would not be possible for the Agency to comply with the terms of the settlement as the Agency has already converted all WG-08 night shift positions to WL-08 positions, which would be a promotion for Complainant and need not be offered to Complainant under the terms of the settlement. EEOC Regulation 29 C.F.R. §1614.504(a) provides that in a settlement breach case, the Commission may find that the appropriate remedy is to reinstate the complainant’s underlying EEO complaint from the point processing ceased. See also Withrow v. Dep’t of Transportation, EEOC Appeal No. 01A51861 (Jun. 20, 2005). Given the material breach of the agreement and the Agency’s concession that compliance with the agreement is not possible, we find that the Agency must reinstate Complainant’s underlying EEO complaint at the point processing ceased. CONCLUSION We AFFIRM the Agency’s final decision finding that it breached the terms of the settlement agreement. The Agency is ordered to comply with the following Order. ORDER (E0618) Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to reinstate the underlying EEO complaint at the point processing ceased and to process Complainant’s claims in accordance with 29 C.F.R. Part 1614. The Agency shall send Complainant notice that it has rescinded the settlement agreement, returned to status quo ante (reversion to previously existing state-of-affairs), and is reinstating the underlying formal complaint (identified as Agency No. 6WOB1900794 and EEOC Case No. 540-2020-00274X) from the point processing ceased. As provided in the statement entitled “Implementation of the Commission’s Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s notice that it has rescinded the settlement agreement. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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). 2022004742 5 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. 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). 2022004742 6 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. 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 January 26, 2023 Date