0120180758
05-22-2018
Genie Y,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Genie Y,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120180758
Agency No. 2015-JCS-011
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) alleging that the Agency failed to comply 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
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 20, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency will pay [Complainant] a lump sum of $ 10,272.
(2) The Agency will restore to [Complainant] 80 hours of Sick Leave she expended in previous years by changing 90 hours of expended Sick Leave to 80 hours of Administrative Leave on [Complainant's] time cards.
By letter to the Agency dated December 19, 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 pay her the amount specified in the settlement agreement or to restore 80 hours of Sick Leave. Complainant filed her appeal directly to the Commission. She asserted that the Agency has not complied with the terms of the settlement agreement and noted her belief that the Agency is not trustworthy.
In response to the instant appeal, the Agency provided the Commission with its Compliance File providing documentation related to the Agency's attempts to comply with the terms of the settlement agreement. We note that the documents provided to the Commission indicate that Complainant and the Agency have been communicating via e-mail from December 2017 through March 2018, regarding the parties' attempts to obtain compliance with the settlement agreement. Included in the response was the Agency's Final Compliance letter dated April 26, 2018. In the final compliance report, the Agency outlined the terms of the agreement and the actions taken to comply with the settlement agreement. As to the lump sum, the Agency indicated that they were informed that Complainant had not received the payment as of March 27, 2018. The Agency had submitted a remedy ticket with the payroll agency regarding the payment but would not have an answer before March 30, 2018. In response to the restoration of sick leave, the Agency noted that as of March 27, 2018, Complainant had not seen the restoration of the leave. The Agency submitted a remedy ticket with the payroll agency. However, the Agency would not receive an answer before March 30, 2018. The Agency stated that this memorandum and documents served "as the final compliance monitoring of this settlement agreement." Therefore, in essence, the Agency indicated that it had completed compliance with the settlement 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).
In the instant case, as noted above, the Agency failed to issue a final decision following Complainant's allegation of breach. Nonetheless, it did provide the compliance file to the Commission in response to Complainant's instant appeal. Based on a review of the evidence before us, we find that the Agency has breached the agreement. As noted above, the Agency indicated that it had submitted the documentation requesting that the payroll agency follow up Complainant's claims that she did not receive the lump sum payment or the restoration of sick leave. However, the Agency did not provide any evidence to show that Complainant received either the payment or the restoration of the sick leave. Accordingly, we do not find that the Agency has shown that it complied with the terms of the settlement agreement.
When we find a breach, we have two choices: specific performance or reinstatement of the underlying complaints. If Complainant choses to reinstate her complaint, she would have to return any monetary relief which she has obtained and/or any leave which was restored. If she chooses specific performance, we require that the parties be held to the terms of the settlement agreement. Therefore, we order that Complainant be provided the option of specific performance of the enforceable provisions or reinstatement of her complaint.
CONCLUSION
Accordingly, we REVERSE the Agency's Determination and REMAND the matter to the Agency for action consistent with the Order below.
ORDER (C0610)
Within fifteen (15) calendar days of the date of this decision, the Agency shall notify Complainant of her option to either:
1. to return to the status quo ante, returning any benefits received pursuant to the October 20, 2017 agreement and having her underlying complaint reinstated, or
2. having the terms of the settlement agreement be specifically enforced.
The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of receipt of the Agency's notice within which to inform the Agency of her choice.
A copy of the Agency's notice to Complainant, regarding her options, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying Complainant that the terms of the agreement will be specifically enforced and evidence of such performance, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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 (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
May 22, 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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