Lorriane L.,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019001615 (E.E.O.C. Dec. 18, 2019)

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

Lorriane L.,1
Complainant,

v.

Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 2019001615

Agency No. 9R1M17040

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) asserting that the Agency has not complied with the terms of a September 24, 2018
settlement agreement. The Agency did not issue a final decision. The Commission accepts the
appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant period, Complainant was a Logistics Management Specialist at the Agency’s
Base and Aircraft Support Equipment, Robins Air Force Base, Georgia.

On March 14, 2017, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on color, disability and in reprisal for prior EEO activity when
subjected to ongoing harassment by the Section Chief beginning in November 2016. After an
investigation, Complainant was provided a copy of the investigative file. Complainant requested
a hearing before an EEOC Administrative Judge (AJ).

The record reflects, however, on September 24, 2018, Complainant and the Agency entered into
a settlement agreement to resolve the matter pending before the AJ. On September 26, 2018, the
AJ issued an Order of Dismissal, dismissing Complainant’s underlying complaint as settled.

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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The September 24, 2018 settlement agreement addressed, in pertinent part, the following Agency
obligation:

c. Also, the Agency agrees to restore both sick and/or annual leave in an amount
not to exceed 60 hours. The Complainant agrees to inform the Agency within
ten (10) working days after receipt of a dismissal order for the captioned case
the leave usage to restore. Restoration may be all sick leave, all annual leave,
or combination of both. The Complainant will cooperate with necessary
actions to assist the Agency with timely correction of time and attendance
documents, and the Agency will take appropriate action within a reasonable
amount of time to correct such documents.

By letter to the Agency dated November 6, 2018, Complainant alleged breach of provision c.
Specifically, Complainant alleged that the restoration of her 60 hours of leave had not been
implemented. Thereafter, Complainant appealed to the Commission claiming that the Agency
was in breach of provision c.

In response to Complainant’s appeal, the Agency asserted that Agency management had
contacted Complainant and explained to her that the Agency was required to coordinate with
Defense Financing and Accounting Services (“DFAS”) to make necessary changes for the leave
restoration. According to the Agency, between November 2018 and January 2019, Agency
management worked with DFAS to issue necessary tickets and provide required information. At
that time, the Agency, through the EEO office, kept the Complainant informed of the progress
towards working with DFAS to restore her leave.

On January 19, 2019, Complainant’s leave balance was accurately restored as requested,
restoring 60 hours of sick leave. The record contains a copy of the Supervisor,
Settlement/Theatre Support Team of the Agency’s DFAS Indianapolis Civilian Pay Customer
Service’s email dated January 30, 2019. Therein, the Supervisor maintained that as of January
19, 2019, Complainant’s 60 hours of sick leave had been restored. The supervisor further stated
she attached copies of Complainant’s last two Leave and Earnings Statement (“LES”)’s which
reflect the correction as follows:

PPE 01.05.19 LS balance was 328.16
PPE 01.29.19 LS balance was 392.16
(328.16+4.0 accrual+60.0 corrected hours=392.16)2

The instant appeal followed. Complainant did not submit a brief on appeal.

2 PPE is an abbreviation for Pay Period End.
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ANALYSIS and FINDINGS

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, we note that provision c imposed upon the Agency the affirmative obligation
to assure that Agency management would restore Complainant’s sick and/or annual leave in an
amount not to exceed 60 hours “within a reasonable amount of time to correct such documents.”

We find that the Agency is in current compliance with provision c. We acknowledge that
Agency management, through the EEO office, kept Complainant informed concerning
restoration of her 60 hours of leave. As there was no time specific deadline as to when the
Agency had to restore Complainant’s leave, her leave restoration as of January 19, 2019, did not
constitute a breach of the instant settlement agreement.

CONCLUSION

The Agency’s finding of no breach of provision c of the September 24, 2018 settlement
agreement is AFFIRMED.

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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 (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.
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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

December 18, 2019
Date