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

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2021004477 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004477 Agency No. 200J-0610-2020105221 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated August 2, 2021, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. 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 an Advanced Medical Support Assistant, GS-6, at the Agency’s VA Medical Center in Fort Wayne, Indiana. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO counselor to initiate the EEO complaint process. On August 28, 2020, Complainant and the Agency entered into a settlement agreement (“the Agreement”) to resolve the matter. In pertinent part, the Agreement provided that: 2(b). Within thirty (30) calendar days, the Medical Administration Service Chief will implement a Diversity & Inclusion segment in every supervisory staff meeting for six (6) consecutive months. 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. 2021004477 2 By e-mail to the Agency dated June 23, 2021, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency provide him the dates and times such meetings took place. Specifically, Complainant alleged that he did not believe these meetings ever took place. In its August 2, 2021 final decision, the Agency concluded the Agreement had not been breached. The Agency stated that it began implementing the Diversity and Inclusion training by planning for it shortly the Agreement was executed. However, on September 22, 2020, Executive Order 13950 was issued, prohibiting such diversity and inclusion training. The Executive Order was subsequently revoked when a new Administration took office in early 2021. By that time, the Agency explained that the supervisor who had created the original training slides left the facility and the slides were not accessible, which required the creation of a new diversity and inclusion presentation. The Agency stated the Acting Chief of Medical Administrative Services was instructed to implement an additional six consecutive monthly diversity and inclusion training session for management from July 2021 to December 2021. In sum, the Agency argued that it was unable to complete the training during the time period specified in the agreement due to the issuance of the Executive Order, which was beyond its control and, therefore, the Agency was not in breach. Complainant filed the instant appeal. On appeal, Complainant contends the Agency acknowledges it did not complete the training as required by the Agreement and therefore breached the Agreement. Complainant also states the Agency did not reschedule the training until months after the Executive Order was revoked. He further notes the training was not rescheduled until after he alleged breach of the Agreement in June 2021. The Agency did not file a brief on appeal. 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). 2021004477 3 The Agency's argument that unforeseen external events, in the form of an Executive Order, prevented the Agency from complying within the agreed-upon time frame, raises the issue of “impossibility of performance.” Under this doctrine, where certain circumstances arise after execution of the contract, making it “impossible” to perform a provision in a settlement agreement, the non-performance may be excused. See Flemon v. U.S. Department of Agriculture, EEOC Request No. 05880291 (August 22, 1988V see also East Capitol View Cmty. Dev., Inc. v. Robinson, 941 A.2d. 1036, 1040 (D.C. 2008). We find that the doctrine of impossibility of performance is applicable here, and that the Agency's failure to comply with the terms of the Agreement within the time period mandated by the Agreement does not constitute a breach. Moreover, we note that once Executive Order 13950 was revoked, the Agency did comply with the training provision in the agreement. While this training could have been provided more promptly once the Executive Order was revoked, we conclude that the delay was not so long as to be unreasonable under the circumstances presented here. CONCLUSION Accordingly, the Agency’s determination of compliance 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. 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 2021004477 4 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. 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. 2021004477 5 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