0120180769
04-24-2018
Catheryn P.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Catheryn P.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120180769
Agency No. HQ130787SSA
EEOC Hearing No.: 531-2016-0016X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated January 26, 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 compliance action, Complainant worked as a Human Resources Assistant at the Agency's Center for Personnel Security and Project Management facility in Baltimore, Maryland.
On October 16, 2017, Complainant and the Agency entered into a settlement agreement to resolve the above referenced EEO matter. The settlement agreement provided, in pertinent part, that:
(1) In consideration of the obligations contained herein, Complainant hereby withdraws and dismisses with prejudice the above-captioned formal complaint of discrimination [referenced as HQ-13-0787-SSA];
(2) Complainant agrees that by signing this Settlement Agreement, she withdraws and dismisses with prejudice any other complaints, grievances, or administrative or judicial actions that she has already filed that are related to or arise out of her employment the Agency up until the effective date of this Settlement Agreement;
(7a) The Agency shall pay Complainant a lump sum payment of five thousand dollars ($5,000.00) within sixty days of the effective date of this settlement agreement;
(7b) The Agency will remove the 14-day suspension from Complainant's Official Personnel File (eOPF). The parties agree that the Agency's payment to Complainant under subsection "a" above fully satisfies any monetary obligations the Agency might otherwise incur as a result of removing Complainant's suspension; and
(14) Both Parties have entered into this Settlement Agreement voluntarily and with a complete and thorough understanding of its terms, meaning, and effect Each of the undersigned is signing this Settlement Agreement voluntarily and freely, without coercion, having had the opportunity to read and raise questions about its meaning prior to signing.
Complainant signed the Agreement on October 16, 2017. On December 5, 2017, Complainant contacted the Acting EEO Director to express an interest in amending the settlement agreement. She wanted to rescind her signature on the Agreement. She also refused to provide the Agency with the information necessary for the Agency to process the payment owed to her under the terms of the Agreement. On December 27, 2017, Complainant filed an appeal directly with the Equal Employment Opportunity Commission. By a letter, styled "Appeal Brief Addendum" dated December 28, 2017, Complainant notified the Agency of her claim that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency "breached the settlement agreement by not immediately removing the retaliatory suspension off [her] records within 60 days." As her requested resolution for the alleged breach, Complainant asked to be allowed to renegotiate the terms of Agreement.
Agency Decision
The Agency concluded that it complied with the Agreement. The Agency reasoned that to the extent there had been a delay in the payment to her, Complainant's refusal to provide the information, required by the Agency to effectuate the payment, contributed to the delay. The Agency stated that, by January 17, 2018, the Agency removed the 14-day suspension from her official records with the Agency. The Agency found that there was no breach because it had taken all necessary actions within the 35-day period after receiving her breach claim. This appeal followed.
CONTENTIONS ON APPEAL
Complainant argues that she is entitled to a hearing regarding this matter, along with a second complaint, identified as number HQ-15-0378-SSA. Although she filed this appeal following the AJ's dismissal of her complaint due to the parties' settlement, she stated on her appeal that "this appeal alleges a breach of the settlement agreement." It is her contention that the Agreement should be set aside, because she says that she was coerced into the signing the Agreement.
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).
We find that the Agreement is valid and binding on both parties. We do not find that Complainant provided any evidence to support her claim that she was forced into signing the Agreement.
Further, the Commission has held that, pursuant to 29 C.F.R. � 1614.504(b), an agency has 35 days from the receipt of notice of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35-day period following the breach notification, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
In this case, the record shows that the Agency paid the monetary consideration and withdrew the suspension from the official personnel record that was within its control. We find the Agency provided sufficient documentation to show that it met its obligations.
Further, we find that to the extent that the Agency's delay constituted breach, the Agency's actions (the issuance of the payment and removal of the suspension) following its receipt of Complainant's notice of her breach claim cured any such breach. Since Complainant presented no evidence of bad faith on appeal, we find that the Agency complied with the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision finding no breach of the settlement agreement.
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 tends 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.
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. 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
April 24, 2018
__________________
Date
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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