[Redacted], Eva M., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionDec 8, 2021Appeal No. 2021004870 (E.E.O.C. Dec. 8, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eva M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021004870 Agency No. 21-NI-002 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated October 29, 2021, finding that it complied with the terms of a March 16, 2021 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 as a Physician (Psychiatry), Grade GS-15, at the Naval Medical Center in Portsmouth, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 16, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The March 16, 2021 settlement agreement contained, in pertinent part, the following provisions: 4.a. Rescission of Termination Action. The Agency shall issue a form SF-50 rescinding Complainant’s removal from federal service, which had an effective date of December 28, 2020. 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 2021004870 The form SF-50 memorializing Complainant’s removal from federal service shall be removed from her personnel file. 4.b. Resignation from Federal Service. Subsequent to the actions in par. 4.a, above, the Agency shall issue a form SF-50 indicating that Complainant resigned from federal service, which resignation shall have an effective date of January 7, 2021. The Agency will code the resignation as a voluntary resignation. 4.c. Interim LWOP. Between December 28, 2020, and January 7, 2021, Complainant shall be placed on leave without pay (LWOP). Complainant understands and agrees that she shall not be entitled to receive any compensation for the period of time between December 28, 2020 and January 7, 2021. By letter to the Agency dated July 22, 2021, Complainant alleged breach of the subject settlement agreement, and requested that the Agency specifically implement its terms. Through Counsel, Complainant argued that there was an understanding that Complainant’s effective date of resignation would be deemed after her probationary period. Counsel asserted that the resignation SF-50 had improperly indicated that Complainant resigned during the probationary period. Counsel also pointed-out that the resignation SF-50 had misspelled the word “psychiatry.” In its October 29, 2021 final decision, the Agency found no breach. The Agency stated that none of Complainant’s accusations reflected an Agency breach. Specifically, the Agency stated that the termination action was removed, that Complainant was permitted to resign after a requisite period of LWOP, and that Complainant had received a copy of the rescinded termination SF-50, as well as the resignation SF-50. The instant appeal followed. On appeal, Complainant’s counsel contends that the Agency had not corrected the misspelled word and had not provided information confirming Complainant’s LWOP status between December 28, 2020 and January 7, 2021. Counsel argues that it was incumbent upon the Agency to provide Complainant with the requested post-settlement confirmation documents because Complainant is no longer an employee and cannot gain access to such personnel data herself. 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. Herrington v. Dep’t of Def., EEOC Request No. 05960032 (Dec. 9, 1996). 3 2021004870 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 (Aug. 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. Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (Dec. 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). Complainant has not shown that the Agency breached the settlement agreement. Although Complainant's breach allegations tangentially address provisions within the settlement agreement, her assertions do not demonstrate noncompliance. In its final decision and correspondence with her legal counsel, the Agency has stated that it carried out the terms of the settlement agreement and Complainant has not presented evidence to the contrary. Complainant has no evidence of noncompliance and the settlement agreement did not expressly oblige the Agency to provide Complainant with documents beyond the mentioned SF-50s. The Agency was required to provide Complainant with records confirming the termination action alleged to be discriminatory had been revoked and the Agency did so. That SF-50 used the word “cancellation” in lieu of “recession” but the Agency nevertheless effectuated revocation of its prior termination SF-50. The Agency was required to provide Complainant with a resignation SF-50, and the Agency did so. Although the settlement agreement established an effective date for the resignation, its terms did not specifically require indicating that Complainant resigned after completing the probationary period. Finally, as to Complainant’s contention that the Agency failed to correct the misspelling of psychiatry in the resignation SF-50, we find that this contention is not germane to the issue of whether the Agency has met its affirmative obligations regarding the subject agreement. CONCLUSION The Agency’s final decision finding no breach of the subject settlement agreement is AFFIRMED for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 4 2021004870 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his request for reconsideration, and any statement or brief in support of his request, via the EEOC Public Portal, which can be found at: https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. NE, Washington DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604. The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. 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. 5 2021004870 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 8, 2021 Date Copy with citationCopy as parenthetical citation