[Redacted], Violet F., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.

Equal Employment Opportunity Commission

Dec 7, 2022

Appeal No. 2022003035 (E.E.O.C. Dec. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Violet F.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 2022003035 Agency No. OBD-2020-00896 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated April 11, 2022, 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 During the relevant time, Complainant worked as a Trial Attorney at the Agency’s Trustee Program, Region 15, in San Diego, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 13, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 2c. The Complainant will be transferred to the Agency’s office in Santa Ana, CA, effective January 10, 2022. Her first line supervisor will be Assistant United States Trustee [AUST1]…Complainant’s Performance Work Plan executed by her on August 13, 2021, will remain in effect, although nothing in this Agreement will limit 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. 2022003035 2 Agency’s discretion to adjust the Complainant’s duties based upon the exigencies and business needs of the office...[AUST1] or their successor will perform Complainant’s 2021-22 mid-year performance review no sooner than April 11, 2022. 2f. The Agency agrees it will not disparage Complainant. Disparage as used herein shall mean any communication, or written, of false information or the communication of information with reckless disregard to its truth or falsity. In the event of a request for employment references, the Agency will confirm Complainant’s dates of employment, her position, and her annual salary. 14. This Agreement and all the documents pertaining to the Complaint are subject to the Privacy Act of 1974, 5 U.S.C. § 552a and will not be disclosed to any person or entity except as authorized by that Act. The parties agree that this Agreement may be filed with the EEOC and may become part of the record for enforcement purposes by the Commission. On December 28, 2021, Complainant notified AUST1, her first level supervisor, that she was approached by a private practice law firm (Firm) about the possibility of employment with them. Notice Noncompliance at 28. That same day, United States Trustee (UST), her second level supervisor, who was carbon copied on this email, thanked Complainant for letting them know. On January 10, 2022, Complainant was transferred from the Agency’s San Diego Office to the Santa Ana Office. Agency Response at 8. On February 14, 2022, Complainant accepted a position as a non-equity partner with Firm. Notice Noncompliance at 32-3. On February 15, 2022, Complainant was sent an email by AUST1 that “[AUST1 is] going to have [Complainant] be the chapter 13 enforcement point person for Woodland Hills.” Notice Noncompliance at 18. UST explained that although Trial Attorneys are usually assigned work at the courthouse nearest their duty stations, all Trial Attorneys in the region may perform work throughout the region, including Woodland Hills, based upon Agency need. Agency Response at 10. UST further asserted that the Santa Ana Office is currently overstaffed with Trial Attorneys, while the Woodland Hills Office is currently understaffed. Agency Response at 10. On February 16, 2022, Complainant emailed UST asking for assistance in determining who from the Agency disclosed personnel information. Notice Noncompliance at 42. Specifically, she alleged that there were rumors among “court staff” in the central district about the reasons for her transfer to Santa Ana. Notice Noncompliance 44. Partner at Firm purportedly informed Complainant that Firm was advised that Complainant had a problem at the San Diego Office, she had filed a lawsuit, part of the settlement was to transfer to Santa Ana, and part of the reason she considered private practice was because of the problem. Notice Noncompliance at 43. Complainant requested UST assist her with “damage control.” Notice Noncompliance at 42. 2022003035 3 On February 18, 2022, Complainant emailed two other AUSTs, asking if they were aware of the origin of the information divulgence. Notice Noncompliance at 47-50. All interviewed Agency Officials denied disclosing any information about Complainant with any third party. Agency Response at 11, 18, 19. On March 4, 2022, UST directed Complainant to contact employment counsel or Human Resources to discuss any alleged breach of settlement, or the consequences thereof. Notice Noncompliance at 52. On March 4, 2022, Complainant was issued a performance review by AUST1. Notice Noncompliance at 20. Complainant signed this document on March 7, 2022. Notice Noncompliance at 20. UST asserted that AUST1 retracted this midyear review and was to issue a new one on or after April 11, 2022. Agency Response at 10. On May 2, 2022, another review was issued to, and signed by, Complainant. Agency Brief at 41; Statement in Support at 11. Complainant noted, however, that the substance of the review did not change, only the date. Statement in Support at 11. By letter to the Agency dated March 11, 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 failed to adhere to the requirements to assign her to the Santa Ana Office; to perform her mid-year performance review on or after April 11, 2022; to not disparage her to outside individuals; and to keep the documents pertaining to the Complaint subject to the Privacy Act of 1974. In its April 11, 2022, decision, the Agency concluded that the Agency did not breach the settlement agreement. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency breached the settlement agreement because they assigned her, primarily, to the Woodlands Office, without consulting her, as opposed to the Santa Ana Office, as was agreed to in her settlement. She asserts that she is the only attorney in her office assigned to an office outside of her assigned area. She further asserts that the Agency conducted her mid-year review on March 4, 2022, as opposed to the agreed upon date of on or after April 11, 2022. Finally, Complainant alleges that the Agency caused disparaging and confidential information regarding her prior EEO Complaint and settlement to be disclosed, damaging her reputation, and causing Firm, who offered her employment, to withdraw their offer. The Agency counters that the Agency has not disparaged, given an employment reference, or distributed documentation about Complainant in violation of the Privacy Act. The Agency goes on to state that Complainant is not assigned to the Woodland Hills Office. Rather, they contend, she is assigned to the Santa Ana Office and assists with legal work in Woodland Hills. They contend she is “simply assisting [her] neighboring office during a staffing issue, as may be required from all attorneys in Region 16.” 2022003035 4 The Agency notes that the Agreement does not state that after Complainant’s transfer, she will only receive specialized assignments in the immediate Santa Ana area. The Agency concedes that Complainant was mistakenly given a midyear review on March 4, 2022, but states that she received a subsequent midyear review on May 2, 2022. 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). 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 Vet. Aff., 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). Transfer Location In the instant case, the Commission finds that the evidence demonstrates that there was no breach of the Settlement Agreement as to the agreed upon transfer location. Complainant’s Notice of Personnel Action makes clear that she was transferred to the Santa Ana Office. Evidence demonstrates that she was made the point person for the Woodland Hills Office approximately one month after her transfer, but this does not constitute a breach of the Settlement Agreement. The Settlement Agreement provided that she be assigned to the Santa Ana Office, which she was. The Settlement Agreement also specified that “nothing in this Agreement will limit the Agency’s discretion to adjust the Complainant’s duties based upon the exigencies and business needs of the office.” The Agency provided evidence which demonstrates that there was need for assistance in the Woodland Hills Office, as that office was understaffed. The Santa Ana Office, to the contrary, was overstaffed. The Settlement Agreement was silent as to the work that Complainant would be assigned once she was transferred to the Santa Ana Office. Midyear Evaluation While the evidence demonstrates that Complainant was provided a midyear evaluation on March 4, 2022, earlier than the agreed-upon April 11, 2022, we find that the Agency has cured this breach of the Settlement Agreement. 2022003035 5 The record demonstrates that the Agency replaced the March 4, 2022, evaluation with a new one dated May 2, 2022. The Commission has held that there is substantial compliance with terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a timeframe specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009) (citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996)); Sorting v. U.S. Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996), citing Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993) (two-week delay in transfer of official letter of regret rather than letter of apology found to be substantial compliance). As a new evaluation was conducted after the agreed-upon date, and we find no evidence of bad faith on the part of the Agency in issuing a premature midyear evaluation, the Commission finds that the Agency has cured its breach of Settlement Agreement regarding the midyear evaluation issue. Divulging of Private Information and Disparaging Comments As to the issue of divulging information and disparaging comments, allegedly issued by Agency Officials, Complainant has not provided evidence that any such revelations were made by anyone at the Agency. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged breach of Settlement Agreement occurred. In this case, Complainant has not established, beyond a preponderance of the evidence, that the Agency breached her Settlement Agreement with regard to either disparagement or divulging of private information. Mere assertions or conjecture that an Agency, or its officials, breached a settlement agreement is insufficient because subjective belief does not constitute evidence of breach. CONCLUSION We AFFIRM the Agency’s decision finding no breach of the Settlement Agreement. 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. 2022003035 6 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). 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. 2022003035 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 December 7, 2022 Date