Tiffanie S.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120181988 (E.E.O.C. Sep. 27, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tiffanie S.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120181988

Agency No. ARFTCAMP15OCT04088

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated April 12, 2018, 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 a Chief, GS-13, Army
Substance Abuse Program (ASAP), in Fort Campbell, Kentucky. Believing that the Agency
subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to
initiate the EEO complaint process. On November 22, 2017, Complainant and the Agency
entered into a settlement agreement to resolve the matter. The settlement agreement provided, in
pertinent part, that both parties agreed to the following:

2.a. Temporarily promote [Complainant] to the position of Army Community Services
[ACS] Director, GS-0101-14, which is presently an obligated vacancy . . . .

* * *

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.
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7. . . . . Both parties, to include [Complainant's] representatives if so represented,
agree that they will not disclose or discuss the terms of this settlement with any
outside party, including other agency employees, except those who may need to
review and approve this agreement.

By letter to the Agency dated March 21, 2018, 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 keep her settlement agreement
confidential as the parties agreed to in provision No. 7. Complainant asserted that a coworker
learned many pertinent facts regarding her EEO settlement and has been referring to its terms in
pursuing his own EEO complaint against the Agency. Complainant maintained that her coworker
has been sharing his own EEO complaint with other employees and has threatened to incorporate
her agreement into his own EEO complaint in his effort to obtain an agreement with the Agency.
Complainant therefore demanded that the Agency cease and desist the further disclosure of her
EEO activity and the terms of her settlement agreement.

In its FAD, the Agency concluded that it has complied with the terms of the settlement
agreement and kept the terms of the agreement confidential as agreed. In response to
Complainant’s allegations, the Agency stated that the coworker at issue simply presumed that
Complainant obtained her position by way of a settlement agreement, as he personally witnessed
Complainant’s reassignment. The Agency noted that the relevant portion of the employee’s EEO
complaint only stated, “Upon settlement of a gender discrimination lawsuit which my senior
rater initiated and resulted in a promotion and reassignment . . . .” The Agency observed that this
statement in the employee’s EEO complaint did not address the specific terms of Complainant’s
agreement, and the information cited by the coworker could have been presumed or deduced
based on the employee’s first-hand knowledge of Complainant’s reassignment. The Agency
maintained that while it had fully complied with the terms of Complainant’s settlement
agreement, it nevertheless took additional measures to protect the confidentiality of the
agreement. The Agency noted that it entered into a settlement agreement with the coworker on
April 1, 2018, and as part of that agreement, required that the coworker cease and desist
disclosure of any information pertaining to any discrimination complaint, including any
information related to Complainant.

CONTENTIONS ON APPEAL

Complainant’s Brief on Appeal

On appeal, Complainant, through her attorney, maintains that the Agency breached the
settlement agreement with respect to the confidentially provision, as noted above, and requests
that the Commission order the Agency to comply with the terms of the provision. In asserting
that the Agency breached the confidentiality provision, Complainant contends that her coworker
revealed to several other Agency employees that she had been moved into her current position as
the result of her EEO complaint alleging gender discrimination.
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Complainant asserts that a colleague told her that a management official said that he knew who
told the coworker about her EEO settlement. Complainant further maintains that she did not
discuss her EEO complaint with others and it is very unlikely that her coworker knew she
initiated an EEO complaint on his own. Complainant argues that it was apparent to everyone
involved that her coworker became aware of her settlement and EEO complaint from someone
within the Agency. She submits a sworn declaration in which she states, “I kept the issues
surrounding my complaint, and the details of the [settlement agreement] confidential such that
my close friends and colleagues did not even know. As such, I find it highly improbable that [the
coworker] simply figured it out on his own.”

Complainant moreover maintains that she has experienced further discrimination and retaliation
as a result of the disclosure of her EEO complaint and settlement.2 She lastly states that she has
incurred attorney’s fees in seeking enforcement of the confidentiality provision of the settlement.

Agency’s Response

In response, the Agency asserts that the Commission has held that general comments about a
settlement agreement are generally not considered a disclosure of the terms and conditions of an
agreement. The Agency also argues that the mere fact that Complainant assumed the position of
ACS Director is outside the “terms” of the agreement and is therefore not protected from
disclosure. The Agency further asserts that it would be impractical for Complainant to perform
the duties of the ACS Director without outside parties being aware that she was assigned to that
position. The Agency maintains that although it was in compliance with the settlement
agreement at all times and no breach occurred, “it nonetheless took [an] additional measure to
ensure compliance with the [settlement agreement] and to fulfill Complainant's demand for
cure.” In that regard, the Agency notes that the coworker’s settlement agreement required him to
cease disclosure of information pertaining to Complainant’s settlement agreement. The Agency
believes the coworker simply presumed that Complainant attained the position of Director by
way of a settlement, as “the ACS Director position they anticipated to be announced was instead
filled by the Complainant.”

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 To the extent Complainant has asserted that the Agency has engaged in additional acts of
unlawful discrimination and/or retaliation, we find that Complainant should pursue her new
claims with the Agency's EEO Office. For timeliness purposes, the date of the filing of the
instant appeal will be deemed to be the date of initial EEO Counselor contact. We note that
pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate a
settlement agreement shall be processed as separate complaints.

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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 (Dec. 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 (Aug. 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 (Dec. 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 case, Complainant maintained that a coworker obtained knowledge about her EEO
settlement through an Agency employee and the coworker discussed her settlement among other
employees. We note that the cited coworker specifically referenced Complainant’s settlement in
his own EEO complaint wherein he wrote:

Upon settlement of a gender discrimination lawsuit which [Complainant] initiated
and resulted in a promotion and reassignment, five white males to include myself,
received “2 block” ratings on our annual appraisals whereas other employees
(non-white males) received “top block” ratings.

Complainant’s agreement specifically stated that the terms of the settlement agreement would be
kept confidential and included language that both parties agreed not to disclose or discuss the
terms of the agreement with any outside party, including other agency employees. The Agency
does not dispute that Complainant’s settlement was the topic of conversation among employees,
but rather maintains that the coworker who disclosed the agreement reasonably deduced on his
own that Complainant had been promoted due to an EEO settlement.

Notwithstanding the Agency contentions, we find that Complainant’s promotion was clearly a
term of the agreement, as noted above with respect to provision 2, and it is apparent that a
disclosure of this term of the settlement agreement took place in some fashion. We find that the
coworker’s statement in his own EEO complaint shows he was aware of the terms and conditions
of Complainant’s settlement, as he used Complainant’s settlement to obtain a separate settlement
for himself and others. The Agency was no doubt concerned that the coworker was improperly
disclosing the settlement, as they instructed the coworker in the agreement with him to cease and
desist disclosing Complainant’s information.

We note that the Agency asserts that the provision in the coworker’s settlement agreement
requiring him to cease and desist the disclosure of Complainant’s information constituted a cure
of the alleged breach. We find, however, that the Agency cannot cure the breach of the identified
confidentiality provision because the coworker has already gained knowledge of the terms of the
settlement and disclosed it to other employees.
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See Kaneta-Ogata v. Dep’t of Agriculture, EEOC Appeal No. 01933692 (Sept. 8, 1993) (agency
could not cure the breach of the confidentiality provision of the settlement, finding that once
confidentiality has been lost, it cannot be restored).

Therefore, we find that the Agency breached the settlement agreement. Where we find a breach,
the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order
specific performance. Here, Complainant has requested specific performance; namely, that the
Agency comply with the plain language of the confidentiality clause of the settlement agreement.
We find that specific performance is the appropriate remedy and, accordingly, will order the
Agency to comply with the terms of the settlement agreement.

CONCLUSION

We find that the Agency breached the settlement agreement. Accordingly, we REVERSE the
Agency's FAD and REMAND the matter in accordance with the ORDER below.
ORDER
1) As Complainant elected specific performance, the Agency shall notify Complainant that
the terms of the settlement agreement shall stand, and the Agency will abide by all of the
terms of the agreement, including the confidentiality provision.

2) The Agency shall pay reasonable attorney’s fees for the legal efforts expended to gain
compliance with the settlement agreement in this matter. Complainant's attorney shall
submit a verified statement of fees to the Agency -- not to the Equal Employment
Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days
of this decision becoming final. The Agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. § 1614501.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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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 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

September 27, 2019
Date