Christy H.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 6, 2018

0120172525 (E.E.O.C. Sep. 6, 2018)

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

Christy H.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120172525

Agency No. ARSILL17FEB00429

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated June 22, 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 Computer Scientist,
DB-1550-132, at the Agency’s Software Engineering Development facility in Fort Sill, Oklahoma.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On May 1, 2017, Complainant and
the Agency entered into a settlement agreement (NSA) to resolve the matter. The settlement
agreement provided, in pertinent part, that:

3. The Agency agrees as follows:

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.
2 The record refers to complainant’s position as being both at the DB-13 and DB-03 level. It is
unclear as to which is the correct designation although the settlement agreement specifies DB-03.
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a. To provide measurable Performance Objectives assigning Computer Scientist
duties commensurate with her series (1550) and grade level (DB-03) of the position
no later than 3 May 2017. The EEO officer will monitor issuance of the
Performance Objectives to the Aggrieved.

d. The Agency will pay attorney fees in the amount of $250.00, no later than 12
May 2017.

By letter to the Agency dated May 15, 2017, Complainant alleged that the Agency was in breach
of the settlement agreement, and requested that the Agency implement its terms. Specifically,
Complainant alleged that the Agency failed to submit $250.00 for attorney’s fees. Complainant
added that the Agency was further in breach because she was unable to agree on the objectives of
her position with management, noting that management had given her the responsibility of a Team
Lead without authority to complete the desirable objectives and she suggested rewriting the
objectives to make her a Chair to an Integrated Product Team (CIPT).

In its June 22, 2017 FAD, the Agency concluded that it complied with NSA provision 3a., but
committed a technical breach of NSA provision 3d. The Agency reasoned that with regard to
provision 3a., Complainant did not assert that the Agency failed to provide “measurable
Performance Objectives assigning Computer Scientist duties commensurate with her series (1550)
and grade level (DB-03),” as required by the NSA. Rather, Complainant acknowledged that she
met with management to craft the necessary performance objectives and reached a verbal
agreement as to all matters. The Agency went on to note that the NSA contains no requirement to
designate Complainant as a CIPT.

As for the $250.00 payment for attorney’s fees, the Agency Activity responsible for payment
argued that the payment had not been made because Complainant’s attorney had not provided an
invoice. However, the Agency’s decision found this to be an unacceptable excuse and the Agency
Activity was given until June 27, 2017, to cure the technical breach and achieve substantial
compliance.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency breached the NSA when it did not adhere to an
outside verbal agreement to confirm in writing Complainant’s assignment to the role of CIPT.
Complainant purported that her supervisors acknowledged that her objectives needed to be updated
and despite her request for written clarification, she had not received clarification. Complainant
argues that without written confirmation of the new job title, she is in a position where “she may
or may not have the authorization to carry out the negotiated performance objectives.” She further
purports that the parties orally modified the signed NSA to include that the “measurable
objectives” were to contain a written acknowledgement of Complainant becoming a CIPT.
Complainant alleges that the Agency is in breach due to the failure to add the title of CIPT to the
Complainant’s list of performance objectives.

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The Agency maintains that the evidence of record is consistent with a finding that the Agency is
in substantial compliance with the NSA. Specifically, the Agency reported that the attorney’s fees
were paid on June 22, 2017, and considered the issuance of Performance Objectives completed
prior to May 3, 2017, in substantial compliance with the NSA.

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);
Complainant v. United States Postal Serv, EEOC Appeal No. 0120140143 (Feb. 20, 2014).

In the instant case, we find that the NSA, which required the Agency to provide Complainant with
“measurable Performance Objectives,” is plain and unambiguous on its face. Moreover,
Complainant has not shown that the Agency breached provision 3a. of the NSA. Specifically, by
Complainant’s own admission, she received objectives from the Agency, as required by the NSA.
Complainant added that she discussed updating the objectives with her supervisors. Further, the
EEO office, the party tasked with monitoring compliance of the agreement, reported that the
performance standards issued to Complainant on May 2, 2017, met the requirements of the NSA.
According to a June 15, 2017 Compliance Report, Complainant requested and received modified
Performance Objectives on May 26, 2017, which further simplified the objectives.

On appeal, Complainant argues that the Agency failed to adhere to an oral agreement that took
place after the signing of the NSA and specified that she would be named a CIPT. We note that
the NSA did not specify that Complainant would become a CIPT. Additionally, upon review of
the record and arguments of both parties, we find that there was no binding settlement agreement
other than the NSA because the purported agreement was not reduced to writing as required by 29
C.F.R. § 1614.603. The Commission notes that we have only upheld the validity of a settlement
agreement entered into orally in one type of situation, i.e., when a verbal agreement is reached
during a hearing before an AJ. Acree v. Dep’t of the Navy, EEOC Request No. 05900784 (October
4, 1990). In upholding the validity of the oral agreement in Acree, the Commission relied on the
fact that the hearing transcript evidenced the agreement between the parties.

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Here, there is no writing to rely on, nor do we have a hearing transcript or its equivalent on which
to bind the parties regarding Complainant’s reports of an oral modification to the NSA. In terms
of Complainant’s reports of discussions with her supervisors about the need to update her
objectives, we find that this is insufficient evidence to indicate that a settlement was reached with
regard to assigning Complainant the role of CIPT. The Commission notes that absent written
confirmation of the terms of an agreement, it is unable to enforce a settlement agreement. If
Complainant had wanted the Agency to assign her the role of CIPT, she should have included the
matter as part of the NSA. See Jenkins-Nye v. General Services Administration, EEOC Appeal
No. 0119851903 (March 4, 1987). Accordingly, we find that there was no additional oral
agreement. Moreover, there is no evidence in the record that the Agency in any way intentionally
failed to comply with the terms of provision 3a. of the NSA. Therefore, we find that the Agency
has substantially complied with provision 3a. of the NSA.

Failure to satisfy a time frame specified in a settlement agreement does not prevent our finding
that an agency has substantially complied with its terms, especially when it subsequently has
completed all required actions. See 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), citing
Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sep. 30, 1993) (two-weeks delay
in transfer of official letter of regret rather than letter of apology found to be substantial
compliance); Centore v. Dep't of Veterans Affairs, Appeal No. 01A04637 (Nov. 2, 2000) (a few-
days after sixty-day time period for compliance not a material breach of settlement agreement).

As for provision 3d. of the NSA, a review of the record shows the Agency submitted payment for
Complainant’s attorney’s fees in the amount of $250.00 on June 2, 2017. While this payment was
submitted later than the date provided in the NSA, the record indicates that the Agency
immediately submitted payment upon receipt of an invoice from Complainant’s attorney. As such,
we find that the Agency substantially complied with the terms of the NSA with respect to the
$250.00 payment of attorney’s fees.

CONCLUSION

Accordingly, the Agency’s finding of no breach of provisions 3a. and 3d. of the NSA is
AFFIRMED.

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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.
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.

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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 6, 2018
Date