Maximo L.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120171343 (E.E.O.C. Oct. 31, 2018)

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

Maximo L.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120171343

Agency No. AF5R1S13004

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) after the Agency failed to issue him a final determination regarding his breach
claim of a May 2, 2016 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.

BACKGROUND

During the period at issue, Complainant worked for the Agency as Military Personnel Systems
Specialist at Patrick Air Force Base in Cocoa Beach, Florida.

Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process.

On May 2, 2016, Complainant and the Agency entered into a settlement agreement to resolve the
matter. The settlement agreement provided, in pertinent part, that the Agency would take the
following action:

Paragraph 3(b):

To cancel the Complainant’s removal SF-50 effective September 13, 2013, and to
process in its place a Retirement-Disability SF-50 with an effective date of April

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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21, 2013. The Agency will provide the two employee copies of the SF-50s, with
the Nature of Action Descriptions Cancellation of Removal and Retirement-
Disability to the Complainant’s Representative by certified mail at 445 Pine
Boulevard, Merritt Island, Florida 32952-5003. Additionally, the Agency will
have the Retirement-Disability SF-50 placed in the Complainant’s official
personnel folder.

On September 8, 2016, the Agency’s Chief of the Eglin Regional Office sent Complainant’s
attorney an email stating that the Agency was unable to execute paragraph 3(b) of the May 2,
2016 settlement agreement. The Chief stated that Complainant was not eligible for disability
retirement until October 2013, although the settlement agreement stated that the Agency would
backdate his disability retirement to April 2013. The Chief stated that this provision was a
mistake, and should not have been included in the settlement agreement. The Chief noted that
since complying with provision 3(b) was not possible, the Agency was going to issue a
Complainant a SF-50 that would change his removal to a resignation dated for September 2013.
The Chief noted that the SF‐50 would be executed by September 12, 2016, if he did not hear
from otherwise.

On September 13, 2016, the Chief sent an email to Complainant’s attorney informing her that the
Agency processed an SF-50 that cancelled Complainant’s removal, and effectuated a resignation
on the same date.

On September 20, 28, and 29, 2016, and on December 1, 2016, Complainant’s attorney sent
email correspondence to the Agency that Complainant did not agree to the Agency’s unilateral
change to Complainant’s SF-50, which had changed Complainant’s removal to resignation. The
attorney noted that the May 2, 2016 settlement agreement was binding, and that as of that date,
the Agency had still failed to provide any evidence that demonstrated its inability to backdate
Complainant’s disability date, in accordance with the original settlement agreement.

On December 5, 2016, the Director of Equal Opportunity emailed Complainant’s attorney stating
that the Agency was aware that Complainant was dissatisfied with Agency attempts to resolve
the matter. He noted that Complainant could pursue remedies after returning all benefits paid to
him under the original agreement. The Agency indicated that if Complainant did not do so, the
Agency was going to consider Complainant’s retention of the benefits as acceptance of its
alternative solution.

On December 12, 2016, Complainant’s attorney responded, stating that he would be proceeding
with a breach of settlement claim, and that he would return the previously paid benefit of
$1,695.2

On December 13, 2016, Complainant’s attorney sent official notification of his breach of
settlement agreement claim to Agency officials.

2 The actual amount was $1,625.
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On February 10, 2017, Complainant’s attorney sent an email to Agency officials stating that her
client was still awaiting a response. On February 13, 2017, the Agency responded stating that it
had previously sent an appropriate response on December 5, 2016 and January 23, 2017, that it
provided an alternative solution to its inability to comply with provision 3(b).

On March 21, 2017, Complainant’s attorney appealed that decision to the Commission, alleging
that the Agency breached the settlement agreement, and is still not in compliance.

The Agency responded, arguing that Complainant’s appeal is untimely, and therefore should not
be addressed by the Commission.

ANALYSIS

As a preliminary matter, based on the timeline of events, and the circumstances of the situation,
we find that Complainant’s appeal to the Commission was timely.

Breach of Settlement Agreement

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, it is clear by the Agency’s acknowledgement that it is not in full compliance
with the May 2, 2016 settlement agreement. The Agency has noted in several correspondences
that it could not comply with paragraph 3(b) of the settlement agreement. However, in none of its
correspondence does it provide sufficient reasoning or documentation to support its
determination that it was not possible to comply, or that it’s alternative solution substantively
complied with the original settlement agreement.

Accordingly, this matter is REMANDED to the Agency for a full merits determination in
accordance with the ORDER below.

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ORDER
The Agency is ORDERED to take the following action:
Within forty-five (45) calendar days of the date that this decision is issued, the Agency shall
conduct a supplemental investigation and issue a decision, pursuant to 29 C.F.R. § 1614.504, on
the breach claim of the subject settlement agreement. As part of the investigation, responsible
Agency officials shall provide affidavits and any other pertinent documentation on the following
two issues:
(a) whether the Agency signatory to the subject agreement was empowered with the
authority to negotiate and execute the instant settlement agreement on the Agency’s
behalf; and
(b) whether and how the Agency was allegedly precluded from backdating
Complainant’s disability retirement to April 13, 2013.
In the alternative, the Agency shall either negotiate an alternative settlement agreement
acceptable to both parties or reinstate the underlying resolved matter from the point that
processing ceased.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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 (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.
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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 Mnature
Carlton M. Hadden, Director
Office of Federal Operations

October 31, 2018
Date