0120170908
04-17-2017
Genny L.,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
Genny L.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120170908
Agency No. DLAN150214
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 23, 2016, 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 matter, Complainant worked at the Agency's Defense Logistics Agency Distribution facility in San Joaquin, California.
It appears from the record that Complainant filed an EEO complaint alleging she was being subjected to a hostile work environment, including sexual harassment, by two supervisors. On August 14, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) In response to [a] reasonable accommodation request, management agrees to assign Complainant to CCP as a GS-2102-06 (step 8) with an effective date of 9 Aug. 2015.
(2) Effective 18 Sep. 2015, management agrees that [the two named supervisors] will receive sexual harassment, anger management, leadership, ethics, conflict resolution, accountability and team building training.
(3) Effective 18 Sep 2015, management agrees to send proof that [the two named supervisors] completed said training.
(4) Effective 26 Aug 2015, management agrees that Complainant will receive a formal apology from [the two named supervisors].
(5) The Complainant agrees to withdraw her informal EEO Complaint Case number DLAN-15-0214.
Prior to the execution of the Agreement, Complainant was a GS-7, step 4. She requested, as a reasonable accommodation, a change to a different location to get away from the two supervisors whom she claimed had subjected her to ongoing harassment. She also indicated that she had been diagnosed with Attention Deficit Disorder (ADD), which she asserted was exacerbated by the hostile work environment. The Agreement required a change in job series and placement in at a lower grade, but at a higher step.
By email communication, dated May 5, 2016, Complainant notified the Agency that it had breached the agreement when it "failed to reassign her to CCP as a GS-2101-06 (step 8) with an effective date of 9 Aug. 2015." She requested that the Agency reinstate her complaint.
In its November 23, 2016 final decision, the Agency conceded that it had breached the Agreement with the 14-month delay in implementing provision (1). It acknowledged that "the Agreement was never processed on August 9, 2015, as it should have been, because HR [Human Relations] never received the Agreement." Although the Agency conceded a breach, the Agency determined that it "ultimately cured [the breach] on October 2, 2016" when it made the required salary adjustment, albeit more than six months after Complainant raised her breach claim. Moreover, the Agency noted that it also sought reimbursement from Complainant for an overpayment that occurred because it failed to implement the salary adjustment in a timely manner.
This appeal followed. On appeal, Complainant again reiterates that the Agency breached the terms of the Agreement and states she wants to reinstate her complaint. She also contends that the Agreement should be voided because it was involuntarily entered inasmuch as she did not knowingly agree to lose money and she was told that she would lose her job if she did not agree to the settlement.
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).
The adequacy or fairness of the consideration in a settlement agreement generally is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. United States Postal Service, EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
Here, we find that the instant agreement should be considered void because the Agency did not incur any legal detriment as part of the bargain. There is no indication that, under the terms of the agreement, the Agency provided Complainant more than what she was entitled to receive in a discrimination-free workplace. Noting the terms of the Agreement require extensive training for the two supervisors alleged to have sexually harassed Complainant and subjected her to a hostile work environment, as well as providing her with formal written apologies, there is little doubt that the reassignment provided for in the Agreement was designed to specifically address Complainant's claims of harassment. We do not find that the Agency's agreement to move the victim of alleged sexual harassment (rather than the alleged wrongdoers) provided her with a tangible benefit, especially when Complainant had to agree to a demotion in order to escape the hostile work environment.
As Complainant has requested that the Agreement be voided and her underlying EEO complaint be reinstated, we find adequate reason to grant her request. Voiding the agreement will rescind the reassignment made under the terms of the Agreement, and restore Complainant to the position, job series and grade level she held prior to entering into the settlement. However, because this may return Complainant to the work environment she found hostile, we will allow her to choose either to allow the Agreement to stand as written or void it and reinstate the processing of her underlying complaint.
CONCLUSION
Accordingly, we REVERSE the Agency's determination of compliance with the Agreement and REMAND the matter to the Agency for action consistent with the Order below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to notify Complainant of her option to either allow the Agreement to stand as written or void it and reinstate the processing of her underlying complaint. The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice to notify the Agency of her choice.
2. If Complainant elects to keep the Agreement, the Agency shall notify Complainant that the Agency will abide by all of the terms of the Agreement. However, the Agency may not collect for any overpayment made to Complainant that resulted from the Agency's unreasonably long delay in complying with the terms of the Agreement.
3. If Complainant elects to reinstate her EEO complaint, Complainant shall be retroactively returned to the position, job series and grade level2 she held prior to entering into the Agreement. The Agency shall resume processing her underlying EEO complaint in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
April 17, 2017
__________________
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.
2 We note that Complainant was a GS-7, step 4 when she signed the Agreement. However, effective on March 6, 2016, Complainant received an increase to step 5. Therefore, when she is reinstated to her GS-7 position, she should be placed at step 5.
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