Karlene G.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 16, 2018

0120172703 (E.E.O.C. Oct. 16, 2018)

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

Karlene G.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120172703

Agency No. DON146785403839

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) concerning 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 Supervisory
Logistics Management Specialist, NH-0346-IV, at the Agency’s Marine Corps Headquarters
located in Quantico, Virginia.

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. The matter was pending before
Equal Employment Opportunity Commission Administrative Judge (AJ). The parties engaged in
a pre-hearing settlement discussion. On February 3, 2017, Complainant and the Agency entered
into a settlement agreement to resolve the matter. The settlement agreement provided, in
pertinent part, that it is agreed that the Agency will:

(B) Restore 13 hours of leave incurred as a result of medical appointments
related to her work situation.
. . .

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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(E) Restore 240 hours of annual leave not subject to use or lose.

On May 23, 2017, Complainant contacted the Agency’s EEO Office alleging that the Agency
was in breach of the settlement agreement. She requested that the Agency specifically
implement its terms. Specifically, Complainant claimed that the Agency failed to restore the
leave specified in Provisions (B) and (E) of the agreement. Complainant indicated that she tried
to resolve the matter within her command. However, when that failed, she contacted the EEO
Counselor who asserted that she would step in to resolve the issue. Complainant continued to
contact the Agency’s EEO Office from May 2017 to July 2017. Again, the Agency failed to
restore the leave or to resolve the claim of breach.

Complainant was told by the EEO Counselor on July 24, 2017, via email that she should contact
the Equal Employment Opportunity Commission Administrative Judge (AJ) who presided over
her hearing. Complainant contacted the AJ as well as the Office of Federal Operations. Based
on the information provided by the Commission, Complainant submitted an email to the
Agency’s EEO Office and Agency Counsel asserting that the Agency should process her claim
of breach pursuant to 29 C.F.R. § 1614.504(a). In response to Complainant’s email alleging
breach, the Agency Counsel emailed asserting that Complainant’s “threat” was unwelcomed.
The Agency did not respond to Complainant's breach allegations, failing to issue a final
determination on her breach claims as required by 29 C.F.R. § 1614.504.

On August 5, 2017, Complainant filed an appeal with the Commission alleging that the Agency
failed to address her claims of breach of Provisions (B) and (E) of the settlement agreement. She
asked that the Commission order the Agency to specifically implement the terms of the
agreement.

The record reflects that the Agency, though notified of Complainant's appeal to the Commission,
did not submit documents that were responsive to Complainant's allegation of settlement breach.

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).
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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, Complainant asserted that the Agency has failed to comply with Provisions
(B) and (E). Specifically, the Agency agreed to restore 13 hours of leave incurred as a result of
medical appointments and 240 hours of annual leave not subject to use or lose. The Agency did
not submit any arguments to dispute Complainant's allegations that the Agency has not restored
the leave as directed by the settlement agreement.

CONCLUSION

Based upon a comprehensive review of the record, we find the Agency breached the settlement
agreement. Accordingly, we REMAND this matter to the Agency for further processing in
accordance with the ORDER below.

ORDER (C0618)
Within 30 days of the date this decision is issued, the Agency is ordered to restore 13 hours of
leave incurred as a result of medical appointments and 240 hours of annual leave not subject to
use or lose.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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).
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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).

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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

October 16, 2018
Date