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

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022003438 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mac K.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022003438 Agency No. 9R1M2100683 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 29, 2022, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. 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 At the time of events giving rise to this complaint, Complainant worked as a Sheet Metal Mechanic Leader (Aircraft), WL-10, at Robins Air Force Base in Georgia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an EEO Counselor to initiate the EEO complaint process. On November 8, 2011, Complainant and the Agency entered into a settlement agreement (“Agreement”) to resolve the matter. The settlement agreement provided, in pertinent part, that in exchange for Complainant’s withdrawal of his complaint: 2. The Agency agrees to remove the Letter of Suspension dated 29 August 2021 from the complainant’s Personnel file, and replace it with a letter of reprimand within 30 days of the final signature of this agreement. 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. 2022003438 2 A. The Agency agrees to restore 8 hours of regular of[sic] pay for the one day of pay (8) hours the complainant didn’t receive because of the suspension within 30 days of the final signature of this agreement. By email to the Agency dated April 1, 2022, Complainant alleged that the Agency was in breach of the Agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with paragraphs 2 and 2(A) of the Agreement. In its April 29, 2022 FAD, the Agency concluded that it had not fulfilled its obligations under the Agreement due to impossibility of performance, pursuant to the prohibitions set forth in 5 C.F.R. § 752.104.2 The Agency stated, “at this time, 5 C.F.R. 752.104 prevents the agency from making changes to personnel record, i.e., removing a suspension pursuant to a settlement action. The Office of Personnel Management has announced a proposed rule to rescind portions of the 5 C.F.R. 752.104. The agency anticipates that the updated regulation will require the agency to make the changes described in the agreement.” The FAD gave Complainant the option of reinstating his complaint or appealing directly to the Commission. Complainant filed the instant appeal. He did not file a brief in support of his appeal. The Agency contends on appeal that performance of the Agreement terms is prohibited by Executive Order and is currently impossible. Therefore, argues the Agency, its failure to carry out the terms of the agreement should be excused. The Agency notes there is no allegation of bad faith, nor is it seeking to void the Agreement. “The Agency acknowledges its obligation to fulfill the terms of the Agreement when OPM [Office of Personnel Management] publishes new regulations which permit the modification of Complainant’s Official Personnel File that is contemplated by the Agreement.” However, the Agency argues that because both parties were mistaken when entering into the Agreement that its terms were enforceable, it is appropriate for the contract to be reformed to require the Agency to perform the contract when regulations permit. In the alternative, Appellant’s complaint should be reinstated. 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. 2 OPM Regulation 5 C.F.R. § 752.104(a) regarding settlement agreements provides that “An agency shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee's performance or conduct in that employee's official personnel records, including an employee's Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse action.” 2022003438 3 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). On May 25, 2018, the President of the United States signed Executive Order 13839 “Executive Order Promotion Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.” The Order provides, in pertinent part, that: Sec 5. Ensuring Integrity of Personnel File. Agencies shall not agree to erase, remove, alter or withhold from another agency any information about a civilian employee's performance or conduct in that employee's Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action. However, on January 22, 2021, the President of the United States signed Executive Order 14003, “protecting the Federal Workforce.” The Order provides, in pertinent part, that: Sec. 3. Revocation of Certain Presidential and Regulatory Actions. (c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles), is hereby revoked. In the instant case, the Agency is essentially arguing that while Executive Order 14003 revoked Executive Order 13839, the OPM regulations implementing Executive Order 13839 have not been rescinded, amended, or modified by OPM to permit the Agency to remove Complainant’s Letter of Suspension from his Personnel file and replace it with a Letter of Reprimand as contemplated by the Agreement. We note that although the parties entered into the Agreement several months after the issuance of Executive Order 14003, the Agreement did not contemplate this issue, as other settlement agreements have. See Arnoldo P. v. Soc. Sec. Admin., EEOC Appeal No. 2022002710 (Jul. 21, 2022); Danial B. v. Dep’t of Veteran’s Affairs, EEOC Appeal No. 2022000242 (Mar. 3, 2022). 2022003438 4 Based on the Agency assertion that it cannot comply with paragraphs 2 and 2(A) of the Agreement until the relevant OPM regulations are changed, we find that the appropriate action is to provide Complainant with the opportunity to have the underlying complaint reinstated for continued processing, as more fully addressed in our Order below. CONCLUSION Accordingly, we REMAND the matter to the Agency for actions in accordance with the ORDER below. ORDER The Agency is ordered to take the following actions: 1. Within thirty (30) calendar days of the date of this decision, the Agency is ordered to notify Complainant of the option to either: (1) return to the status quo prior to the signing of the November 8, 2011 settlement agreement and have his underlying complaint reinstated for processing, or (2) obtain specific performance of the agreement as reformed to delay implementation of paragraphs 2 and 2(A) until such time as the relevant OPM regulations are changed. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency which option he wishes to pursue. Complainant shall be notified that, in order to return to the status quo ante, he must return any monetary benefits (if applicable) or other benefits received pursuant to the agreement. 2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand, and the Agency will abide by all terms, except for paragraphs 2 and 2(A) of the agreement until such time as the relevant OPM regulations are changed. 3. If Complainant elects to reinstate the underlying EEO complaint, the processing of the EEO complaint will resume from the point processing ceased pursuant to the procedures detailed in 29 C.F.R. Part 1614. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2022003438 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). 2022003438 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 (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. 2022003438 7 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 29, 2022 Date