Lamont C.,1 Complainant,v.Philip A. Miscimarra, Chairman, National Labor Relations Board, Agency.

Equal Employment Opportunity Commission

Nov 23, 2018

0120182630 (E.E.O.C. Nov. 23, 2018)

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

Lamont C.,1
Complainant,

v.

Philip A. Miscimarra,
Chairman,
National Labor Relations Board,
Agency.

Appeal No. 0120182630

Agency No. HDQ-17-02

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency decision, dated June 29, 2018, 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. The Commission accepts the
appeal.

BACKGROUND

During the relevant time, Complainant worked as an attorney in the Agency’s Office of the
Executive Secretary, in Washington, D.C. He was terminated during his probationary period.
Believing his termination was discriminatory, on October 3, 2016, Complainant filed an EEO
complaint based on race, color, sex, and age. Thereafter, on November 8, 2016, Complainant
and the Agency entered into a settlement agreement to resolve the matter. The agreement
provided, in pertinent part, that:

2. The Agency agrees to take the appropriate steps to remove all references
to the termination in [Complainant’s] electronic or hard copy Official
Personnel Folder (OPF), whether in form of SF-50s, the notice of
termination, or otherwise, and to replace any SF-50 in Maddox’s OPF
referencing his termination with an SF-50 coded to state that he

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.
0120182630

2
immediately transferred to an attorney position in the Freedom of
Information Act Branch, Office of Legal Counsel, Office of General
Counsel.

a. The Agency agrees to place [Complainant] on leave without pay status
between the time of his termination and the effective date of his
transfer to the Freedom of Information Act Branch. The Agency shall
restore his sick leave balance of 79 hours. The Agency shall also
retroactively restore any other benefits to [Complainant] such as
retirement, life insurance and health insurance, for which
[Complainant] shall be responsible for paying the employee share, and
the Agency shall be responsible for the government share.

By correspondence dated August 11, 2017, Complainant alleged that the Agency breached the
settlement agreement, and requested that the Agency implement its terms. Specifically,
Complainant alleged that the Agency failed to retroactively restore his retirement benefits as
required by provision 2 a. According to Complainant, he was notified of a forfeiture, in the
amount of $859.94, which was the 1% Agency contribution. The Thrift Savings Plan (TSP)
representative stated that the July 18, 2016 forfeiture was issued because Complainant was not
yet vested at the time of his separation. The representative also informed Complainant that the
amount had not been restored. Additionally, Complainant claimed that the Agency failed to
provide the retroactive contributions to his TSP account for the time between his termination and
reinstatement. Thereafter, in December 2017, Complainant also discovered a reference to his
termination in his OPF, another breach of the settlement.2

In its June 29, 2018 final decision, the Agency concluded that it was in compliance with the
agreement. The Agency reasoned that it was prohibited from making such TSP contributions
while Complainant was in LWOP status and in the absence of a back-pay award. The Agency
asserted that agreeing to do so was a “mutual mistake”, thereby voiding that particular provision
of the settlement agreement. As for Complainant’s claim that the Agency failed to remove
relevant documents from his OPF, the Agency acknowledged the breach, and stated that it has
since been cured.

Complainant filed the instant appeal. Complainant argues that it was not a “mutual mistake” but
rather an error solely made by the Agency, because it was an Agency obligation to ensure that
the Agency could implement any agreed to terms. In fact, Complainant contends that the six-
month period3 between his termination and the completion of the settlement agreement was due
to the Agency’s Human Resources Department investigating the terms to make sure they

2 The Agency asserts, and Complainant does not dispute, that this breach was later cured.
Therefore, we shall not address this matter on appeal.

3 The record, however, reflects a three-month period. Complainant states the agreement was
negotiated on, approximately, July 29, 2016 and he was reinstated on November 12, 2016.
0120182630

3
complied with HR policy and federal laws. He also asserts that he waived his right to back-pay
in order to expedite a resolution, and yet now the absence of a back-pay award is purportedly one
of the reasons the Agency cannot reimburse his retirement benefits. Complainant states that the
“Agency had the responsibility to discover all facts relevant to its ability to make the promised
contributions before execution of the settlement agreement. Because it did not do so at the time,
the Agency cannot claim that its failure then to learn of these facts now acts as a bar to
performance.” (emphasis in original).

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, in exchange for the withdrawal of Complainant’s EEO
complaint, the Agency agreed to remove all references to his prior termination and instead
transfer him to an attorney position in another office. For the time period between his
termination and return to the Agency, Complainant would be placed in LWOP status. The
Agency also agreed to “retroactively restore any other benefits to [Complainant] such as
retirement . . . for which [Complainant] shall be responsible for paying the employee share and
the Agency shall be responsible for the government share.”

In his affidavit, Complainant acknowledged receipt of the, previously forfeited, Agency’s 1%
TSP contributions ($859.94). As for the retroactive contributions, the Agency claims it is
prohibited from doing so. According to the Agency, because Complainant was placed on LWOP,
rather than given back-pay, there was no “pay” from which to make the employee payroll
deductions and for the Agency to provide the accompanying matching funds. This later
realization, contends the Agency, was a “mutual mistake”.

Under the general principles of contract law, a party may avoid an otherwise valid contract
because of a mistake. One who attacks a settlement agreement bears the burden of showing fraud
or mutual mistake. See Asberry v. United States Postal Service, 692 F. 1378, 1380 (Fed Cir.
1982).
0120182630

4
The party attempting to avoid the contract must prove that: (1) the mistake related to a basic
assumption upon which the contract was made; (2) the mistake had a material effect upon the
agreement, and (3) the mistaken parties did not assume or legally bear the risk as to the mistaken
fact. Restatement (Second) of Contracts 152, see also Skyline Corp. v. National Labor Relations
Board, 613 F.2d 1328 (5th Cir. 1980).

The Agency has failed to meet its burden in establishing mutual mistake or impossibility. The
only evidence4 regarding the Agency’s inability to make the retirement contributions is an HR
Associate Director’s affidavit. The HR Associate Director attested that due to Complainant’s
status in LWOP, and the absence of a back-pay award, TSP matching contributions could not be
made. The relevant Agency policies or regulations that prohibit the Agency’s retroactive
contributions have not been provided to the Commission. The HR Associate Director also stated
that the Office of Human Resources was not consulted during the negotiation of the agreement,
the reason for the delayed execution allegedly given to Complainant. As alluded to in emails
between HR officials and Complainant, we do not find the instant provision to be particularly
unusual or unique.5 The Agency should have been aware of such pre-requisites before agreeing
to such settlement terms. We note that in an Agency email response to Complainant’s allegation
of breach, Agency counsel describes a “key provision” of the agreement was “no backpay”. This
Agency priority, however, prevented Complainant’s desire to have her benefits restored. We
agree with Complainant, that any “mistake” in the instant case was made by the Agency alone.

Consequently, the Commission finds that the Agency has breached provision 2. a. of the
settlement agreement. Where we find a breach, the Commission has two options to remedy the
situation: (1) reinstate the complaint or (2) order specific performance. In his allegation of
breach, Complainant requested specific enforcement. We find this choice, to the extent possible,
is the most appropriate.6

On remand, the Agency shall first provide specific evidence, including reference to and copies of
the relevant laws and policies that prohibit it from making retroactive TSP contributions to
Complainant’s account for the time period June 17, 2016 through November 12, 2016.

4 The Agency provided a document entitled: “Effect of Extended LWOP on Federal Benefits and
Programs”. However, it does not address the issue at hand (i.e. TSP contributions).

5 The correspondence mentioned HR encountering similar implementation problems with other
employees.

6 The parties are reminded that if the complaint were to be reinstated, Complainant would first
need to return to the status quo ante (i.e. he would no longer hold his position in the FOIA
Branch, his OPF would reflect his termination, his debt would not be waived, and his annual
leave would not be restored).

0120182630

5
After it has done so, the Agency shall provide Complainant with a lump sum payment reflecting
the amount of its matching contributions during the relevant time period, with interest.7

CONCLUSION

The Agency decision finding that a portion of the agreement was void is REVERSED and the
matter is REMANDED to the Agency for remedial relief consistent with the ORDER below.

ORDER

Within thirty (30) calendar days of the date this decision was issued, the Agency shall:

(1) Provide evidence regarding the specific Agency policies, regulations or laws that
prohibit it from making retroactive contributions to Complainant’s TSP account,
as required by the November 8, 2016 settlement agreement.

(2) After establishing it is legally prevented from making such contributions, the
Agency shall calculate the amount of TSP contributions owed to Complainant,
from the time of his termination until his reinstatement, along with interest from
the date Complainant alleged breach until the date of this decision.

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).

7 In a November 21, 2017 email from the Agency to Complainant, the Agency offered
Complainant a lump sum payment of $1,554.08. According to Agency calculations,
Complainant contributed $105.96 to his TSP account per pay period. The Agency’s match of this
amount, along with the Agency’s automatic 1% contribution, resulting in a payment by the
Agency of $141.28 per pay period.
0120182630

6
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.
0120182630

7
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

November 23, 2018
Date