[Redacted], Emelda F., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2023001134 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emelda F.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2023001134 Agency No. FBI-2019-00298 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated November 9, 2022, finding that it was in compliance with the terms of a September 20, 2022 settlement agreement. The Commission accepts the appeal. 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, Complainant worked for the Agency as a Management and Program Analyst at the Agency’s facility in Clarksburg, West Virginia. Believing that the Agency subjected her to unlawful discrimination based on disability, sex, and in reprisal for prior protected EEO activity, Complainant filed a formal complaint. While the matter was pending before an EEOC Administrative Judge, the parties executed a settlement agreement to resolve the matter. The September 20, 2022 settlement agreement provided, in pertinent part, that the Agency would undertake the following obligations: 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. 2023001134 2 1. Make one lump sum payment in the amount of Twenty Thousand Dollars and no cents ($20,000 and no/100), via electronic transfer, payable to the [Complainant’s legal representative]. 2. Provide [Complainant] with credentials stamped “retired”. 3. Provide [Complainant], via CJIS, a fingerprint plaque, assuming [Complainant’s] prints from her EOD can be located. 4. Expunge from [Complainant’s] employment personnel files any and all documents related to her removal. 5. Issue [Complainant] a revised SF-50 to reflect “retirement” rather than “termination”. 6. Provide a neutral reference . . . . By letter to the Agency dated October 6, 2022, Complainant alleged breach, and requested that the Agency specifically implement the terms of the subject agreement. Specifically, Complainant alleged that the Agency failed to comply with provisions B.2. and B.5., when it stated it was unable to change her SF-50 to “retirement” and when finding that Complainant was not eligible for retirement until February 20232. In response, the Agency issued a decision finding the settlement agreement was void due to “mistake.” The Agency explained that it was unable to modify the SF-50 to reflect “retirement” (instead of “removal”) because Complainant was not yet eligible to retire. The Agency determined that because Complainant was ineligible, it was “impossible” for it to comply with provisions B.2 and B.5 within thirty days of the AJ’s order, as required. Th Agency found that because it lacks the authority to order specific performance, reinstatement of the underlying complaint was the only remedy available. Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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). 2 The Agency subsequently noted that Complainant eligibility date is January 6, 2023. 2023001134 3 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). In the instant decision, the Agency reasoned that a “mistake in fact” occurred during the formation of the agreement, as it was “under the impression” that Complainant was eligible to retire when she proposed changing her SF-50 from “terminated” to “retired”. Further, the Agency asserted the mistake was mutual, because Complainant assumed the Office of General Counsel (OGC) had performed due diligence and OGC assumed Complainant was retirement eligible. The record contains an October 3, 2022 email, from the Agency to Complainant’s attorney, stating that the Retirement Unit in the Human Resources Division was unable to change the SF- 50 to “retirement” because Complainant was not eligible to retire until February 2023. The Agency suggested that the SF-50 be changed to “resignation” and that Complainant apply directly to OPM for retirement in 2023. In an October 6, 2022 response, Complainant’s attorney argued that at the time of execution of the settlement agreement, the Agency knew that Complainant was not eligible to retire because settlement negotiations included discussions of VERA (Voluntary Early Retirement Authority) and VSIP (Voluntary Separation Incentive Payment)3. Therefore, Complainant reasonably believed that by agreeing to allow her to retire on the date of separation the Agency had done its due diligence and was offering retirement instead of the monetary compensation she sought. Based on the instant record, we decline to find mutual mistake. In arguing its position, the Agency relies on our decision in Grant v. Dep’t of the Army, EEOC Appeal No. 01931896 (June 18, 1993). In Grant, the agency was unable to execute the agreement terms after OPM informed that agency that a recent change in the law, regarding elections of an alternative form of annuity, had made it legally impermissible to carry out the provisions related to a change in Complainant’s retirement plan. Under those unique circumstances, the Commission found “a mutual mistake as to the lawfulness of the retirement date provision,” which rendered the agreement unenforceable. 3 The underlying complaint, resolved by the agreement, concerned management’s alleged refusal to allow Complainant incentive separation via VERA/VSIP. 2023001134 4 However, contrary to Grant, we do not find that the Agency has adequately established that it was impossible to comply the provisions B.2. and B.5.4 Aside from the Agency’s bare assertions in its decision, the only evidence provided by the Agency is a “FERS Benefits Estimate Report”, dated November 3, 2022, regarding Complainant. This document, however, does not illustrate how or why compliance would be impossible. Because the Agency has not provided sufficient reasoning or documentation to support its determination that it was not possible to comply with its obligations under the September 20, 2022 agreement, we are remanding the matter for a supplemental investigation. See Maximo L. v. Dep’t of the Air Force, EEOC Appeal No. 0120171343 (Oct. 31, 2018). CONCLUSION The Agency’s decision finding the agreement is void is VACATED. The matter is REMANDED to the Agency in accordance with this decision and the Order below. ORDER Within forty-five (45) calendar days of the date that this decision is issued, the Agency shall conduct a supplemental investigation and issue a decision, pursuant to 29 C.F.R. § 1614.504, on the breach claim of the subject settlement agreement. As part of the investigation, responsible Agency officials shall provide affidavits and any other pertinent documentation on the following: Whether and how the Agency was allegedly precluded from providing Complainant with credentials stamped “retired” and issue a SF-50 to reflect “retirement,” in accordance with its obligations under provisions B.2. and B.5. In the alternative, with the permission of Complainant, the parties may elect to engage in further negotiations in an effort to reform the settlement agreement with revised terms, particularly in light of the passage of time and potential change in Complainant’s retirement eligibility status. 4 We suggest the Agency consider our decision in Deshawn S. v. U.S. Agency for Global Media, EEOC Appeal No. 2020001599 (May 26, 2020). In Deshawn S., the agency asserted that it could not comply with the agreed to conversion of leave hours because its payroll service refused to execute the change asserting it was contrary to law and sought to have the provision voided. Instead, the Commission found that “the Agency should bear the responsibility for the mistake in the agreement because it, through its legal representatives, avowed to undertake the action without determining first any possible conflicts with personnel regulations.” 2023001134 5 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). 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). 2023001134 6 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2023001134 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 March 6, 2023 Date