0120151313
03-14-2017
Kesha Y.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, (Defense Media Activity) Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kesha Y.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense,
(Defense Media Activity)
Agency.
Appeal No. 0120151313
Agency No. 2014DMA007
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 4, 2015, 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 compliance action, Complainant worked as an Administrative Officer at the Agency's Defense Media Activity facility in Fort Meade, MD.
On October 2, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. Complainant was represented by an attorney. The settlement agreement provided, in pertinent part, that:
(3) The Complainant waives, releases and forever discharges the Agency . . . from any claims, demands, or causes of action which the Complainant has or may have based on any matter arising out of, or related to, her employment with the Agency. This release includes, but is not limited to, a release of any claim for . . . attorney's fees, costs, interest, compensatory damages or other forms of compensation and / or benefits not specifically enumerated in this Agreement;
(4) The Agency releases Complainant from her obligation to repay one hundred and sixty-eight (168) hours of sick leave that the Agency advanced to Complainant. The Agency agrees to reset Complainant's sick leave balance to zero; and
(8) The Parties agree that there are no remaining disputes, obligations, or claims arising from her employment with the Agency, and this Agreement fully, satisfactorily and conclusively resolves and forever settles all causes of action arising from Complainant's employment with the Agency up to, and including, the date of this Agreement.
As of February 7, 2015, Complainant's Master Leave History was still showing a negative sick leave balance of 140 hours. Record, Exhibit 4-6. By letters to the Defense Media Activity, dated December 17, 2014 and February 12, 2015, Complainant alleged, through her attorney, that the Agency breached the settlement agreement. Specifically, Complainant alleged that the Agency failed to reset her sick leave balance to zero and, as a consequence, "Complainant is currently being charged four (4) hours of sick leave every pay period by her new Federal employer." Subsequent to the execution of the Agreement, Complainant transferred to a new position with the Department of the Army. Complainant requested that the Defense Media Activity (DMA) take the necessary follow-up action with the Defense Financial Accounting Service (DFAS) to "ensure that Complainant is fully credited with 168 hours of sick leave and that any sick leave she has lost since 10/2/14 be restored to her accumulated sick leave account." She also sought reimbursement for her attorney's fees in this compliance matter.
As of February 25, 2015, the record showed that the sick leave balance had been adjusted.
The Agency (DMA) did not issue a determination on Complainant's breach claim. After giving the Agency notice of the breach claims, Complainant filed an appeal directly with the Commission.
On appeal, Complainant relied on her previously filed letter which she submitted in support of her breach claim. She did not submit a separate brief. In its March 4, 2015 reply to the appeal, DMA stated that it took the steps to comply with the agreement, but its compliance was not reflected in the Defense Financial Accounting Service's (DFAS) records until February 25, 2015. DMA asserted the "appeal is moot" and asked that we dismiss Complainant's appeal.
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).
We find that the Agreement is valid and is binding on both parties.
In the instant case, the Agreement required DMA to release Complainant from repaying the sick leave balance and to adjust Complainant's sick leave balance to zero. The Agreement did not specify a date specific, by which the adjustment must be done. The record shows that DMA took the steps to carry out its obligations under the Agreement in a timely manner. While we understand that there may have been unintended consequences caused by her transfer to a different agency and the time it took for the adjustment to be officially reflected by DFAS, the Agreement did not address that situation. Moreover, we note that the Agreement expressly provided for the release of any claim for attorney's fees, costs or other compensatory damages not specifically enumerated.
For these reasons, we find that Complainant failed to show that the Agency breached the terms of the Agreement.
CONCLUSION
We AFFIRM the Agency's determination, as stated in its reply brief, finding that it complied with the Agreement.
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 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 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 (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 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
March 14, 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.
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