Colene M,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

0120181075 (E.E.O.C. Aug. 13, 2019)

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

Colene M,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120181075

Agency No. GSA13R2P0098

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from a December 18, 2017 Final Agency Decision (“FAD”) 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 Business Manager,
at the Agency’s Public Building Service, Region 2, Property Management Division, in Syracuse,
New York.

On February 3, 2017, Complainant and the Agency entered into a settlement agreement (“the
Agreement”) to resolve two EEO Complaints which were at the hearing phase before an EEOC
Administrative Judge.2 Relevant to the instant complaint are Term F, and Term H, Provision 4,
which state:

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 EEOC Hearing No. 520201500167X (Agency Nos. GSA13R2P0098, GSA17R2P0042).
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F. Complainant and the Agency agree to place Complainant in a 120-day detail
in Region 2 based on availability of the position, her qualification for the
position, and Complainant’s consent. No telework assurance is made for the
period of the detail. Any request for a detail shall be handled in good faith by
the Agency.

H.4 The Parties further agree: that if Complainant believes that the Agency has not
complied with any term or Conditions of this Agreement, Complainant shall
notify the Agency in writing, of the alleged noncompliance within 30 days of
when she knew or should have known of the alleged noncompliance.

On December 18, 2017, Complainant contacted the Agency in writing alleging that it was in
breach of the Agreement, and requesting specific implementation of its terms.3 Specifically,
Complainant alleged that the Agency failed to meet its obligation under Term F because it made
no effort to place her in a detail in Region 2 or any other Region after entering the Agreement.

In its January 17, 2018 FAD, the Agency concluded that it had fully complied with Term F of the
Agreement because Complainant served a 120 day detail from July 3, 2017 through October 31,
2017.

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

The Commission has held that in the absence of a specific time frame in a settlement agreement,
it is interpreted to be for a reasonable amount of time. Parker v. Dep’t of Def., EEOC Request

3 Complainant initially alleged breach of Terms D and F, which the Agency denied, however, on
appeal, Complainant addresses Claim F only.
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No. 05910576 (Aug. 29, 1991); Gomez v. Dep’t of the Treasury, EEOC Request No. 05930921
(Feb. 10, 1994). Additionally, in the instant case, Complainant is obligated under Term H.4 of
the Agreement to notify the Agency “within 30 days of when she knew or should have known of
the alleged noncompliance.”

The Agreement does not provide a specific deadline or time frame with respect to Term F.
However, Complainant knew or should have known about the Agency’s alleged failure to “place
Complainant in a 120-day detail in Region 2” once a reasonable amount of time passed for the
Agency to comply. The Agency confirms that it made no effort to proactively to comply with
Term F, stating that “nowhere in the settlement agreement does it state that the Agency will find
and offer [Complainant] a detail opportunity in Region 2.”

Despite the Agency’s silence on the matter, and Complainant’s stated interpretation that under
Term F, the Agency would “come to [her] with a detail,” Complainant waited over 10 months to
inquire with the Agency about its compliance with Term F. During this time, Complainant
successfully served a 120-day detail based out of the Agency’s Central Office in Washington,
DC, which she clarifies was unrelated to the Agency’s obligation under Term F because it was
not located in Region 2, and she applied for the position competitively.

We find Complainant knew or should have known of the Agency’s noncompliance by the time
her detail started on July 3, 2017. Notwithstanding the availability of a detail in Region 2
specifically, a reasonable amount of time had passed to be placed in a detail, and the Agency had
yet to contact Complainant about Term F. However, Complainant did not formally notify the
Agency until December 18, 2017, more than 30 days after she knew or should have known about
the Agency’s noncompliance with Term F.

CONCLUSION

Accordingly, the Agency's finding that it was not in breach of the 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
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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

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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

August 13, 2019
Date