Cami C.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Sep 27, 2018

0120180376 (E.E.O.C. Sep. 27, 2018)

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

Cami C.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 0120180376

Agency No. IRS-17-0459

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated November 30, 2017, 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 Management and
Program Analyst at the Agency’s Office of Appeals in Baltimore, Maryland. Believing that the
Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO
Counselor to initiate the EEO complaint process. On June 14, 2017, Complainant and the Agency
entered into a settlement agreement to resolve the matter. The settlement agreement provided, in
pertinent part, that:

A. For three (3) months following the signing of this agreement, the Agency agrees to conduct
one meeting per month between the [Complainant], the Manager of Worklife/Workplace
Programs, the Director of Appeals Human Capital Programs, and the Director of Appeals
Case and Operations Support to ensure that appropriate efforts are being made to maintain
open communication and working relationships.

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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By letter to the Agency dated October 6, 2017, 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 settlement agreement
because the scheduled meetings had been ineffective due to management’s “lack of appropriate
efforts of maintaining open communication and working relationships.” Complainant added that
the Agency further breached the settlement agreement when, as of October 6, 2017, management
had failed to reschedule a September 7, 2017 post-mediation check-in call.

In its November 30, 2017 FAD, the Agency concluded that it had breached the settlement
agreement when it failed to timely uphold its obligation to conduct one meeting per month between
Complainant, the Manager of Worklife/Workplace Programs, and the Director of Appeals Human
Capital Programs for three months following the signing of the agreement. While the requisite
meetings took place in July 2017 and August 2017, the Agency noted that it had failed to
reschedule a September 7, 2017 meeting during the month of September due to scheduling
difficulties among the parties. However, the Agency found that it cured the breach by conducting
a meeting on October 30, 2017.

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 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).

The Commission has found substantial compliance with the terms of a settlement agreement where
agencies have committed, in good faith, a technical breach of a provision of the agreement that did
not undermine its purpose or effect. See Hoyland v. Dep’t of the Army, EEOC Appeal No.
0120103271 (Dec. 2, 2010). The Commission has also found that the failure to satisfy a time-
frame specified in a settlement agreement does not prevent a finding of substantial compliance of
its terms, especially when all required actions were subsequently completed. Mopsick v. Dep’t of
Health and Human Serv., EEOC Appeal No. 0120073654 (August 17, 2009)(citing Lazarte v.
Dep’t of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996)); Sortino v. U.S. Postal Serv.,
EEOC Request No. 05950721 (Nov. 21, 1996).

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In the instant case, we find that the Agency properly determined that it did breach the settlement
agreement when it did not complete the third meeting within the specified time frame. A review
of the record reveals that the third meeting was initially scheduled for September 7, 2017.
Complainant acknowledges that the meeting was rescheduled at her request because both
Complainant and her first-line manager were out on sick leave on the date of the third meeting.
As such, we find that the Agency is not at fault in the delay of the third meeting due to
Complainant’s request to reschedule the meeting.

We note, however, that although the Agency did breach the settlement agreement, the Agency has
cured the breach. An agency has 35 days from the receipt of a complainant’s allegation of breach
to resolve the matter. See 29 C.F.R. § 1614.504(b). In this instance, the Agency received
Complainant’s allegation on October 16, 2017. According to email correspondence, the
rescheduled meeting occurred on October 30, 2017. Although Complainant further alleged that
the Agency failed to maintain open communication and working relationships, she has not
provided any evidence in support of this claim. Moreover, Complainant has not provided evidence
that she was harmed by the delay in the rescheduling of the third meeting. Therefore, we find that
the Agency cured the alleged breach.

CONCLUSION

Accordingly, the Agency’s finding of no breach of the settlement agreement is AFFIRMED.

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.
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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.
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 (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.

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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, 2018
Date