0120172887
01-25-2018
Miguelina S,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Miguelina S,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172887
Agency No. 200P00102017100998
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated August 17, 2017, finding 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 complaint, Complainant was a former employee at the Agency.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 2, 2017, Complainant and the Agency resolved the matter through mediation. Relying on the resolution, Complainant withdrew the matter from the EEO complaint process on the same day.
By letter to the Agency dated June 27, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that that the Agency Representative failed to develop and conduct an investigation to gather truthful findings regarding her claim of harassment.
In its August 17, 2017 FAD, the Agency concluded that the parties reached resolution and Complainant withdrew her initial EEO contact based on her reliance that the parties had reached an agreement. However, there is no indication that a written settlement agreement was ever executed. However, the Agency held that, due to Complainant's detrimental reliance and its actions in compliance with the agreement, it was bound by the settlement agreement.
The Agency then noted that the only provision of the agreement was for a "promise to 'investigate' [Complainant's] sexual harassment claim." Consequently, the Agency found that this promise did not provide Complainant with anything of value in exchange for the withdrawal of her complaint. Therefore, the Agency concluded that the oral settlement agreement was void for lack of consideration and that her EEO complaint, Agency Case Number 200P-0010-2017100998, should be reinstated at the point processing ceased.
This appeal followed. On appeal, Complainant provided a copy of the alleged investigation and stated that she feared that her complaint would be dismissed.
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).
The Agency correctly held that, under the circumstances presented here, it was bound by the oral agreement. The agreement provided that the Agency would conduct an investigation into Complainant's claim of sexual harassment in exchange for her withdrawal of her EEO matter. When, one of the contracting parties incurs no legal detriment, the settlement will be set aside for lack of consideration. See Complainant v. Dep't of Defense (Defense Intelligence Agency), EEOC Appeal No. 0120130184 (Dec. 24, 2013). Therefore, the Agency properly concluded that the "agreement" should be voided for lack of consideration as it was required to investigate a sexual harassment complaint anyway. The Agency also took the proper course of action after voiding the agreement, which was to resume the processing of the complaint from the point where processing ceased.2
CONCLUSION
Upon review of the record, we AFFIRM the Agency's final decision voiding the settlement agreement in this case and REMAND the matter in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to:
(1) Resume the processing of this complaint from the point where processing ceased due to the settlement. The Agency shall acknowledge to Complainant that it has reinstated and resumed the processing the previously settled matter. Processing shall proceed in accordance with 29 C.F.R. Part 1614.
(2) Send a copy of the Agency's letter of acknowledgment to the Compliance Officer as referenced below.
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.
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. 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
January 25, 2018
__________________
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.
2 We note that Complainant stated on appeal that she feared that her complaint would be dismissed. We find that such an argument is premature as the Agency has taken no such action.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172887
2
0120172887