[Redacted], Michelle B., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionApr 28, 2021Appeal No. 2021001098 (E.E.O.C. Apr. 28, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Request No. 2021003027 Appeal No. 2021001098 Agency No. 05-47609-01595 DECISION ON RECONSIDERATION The Equal Employment Opportunity Commission (EEOC or Commission) reconsiders its decision in EEOC Appeal No. 2021001098 (April 26, 2021) on its own motion. The decision in EEOC Appeal No. 2021001098 dismissed Complainant’s appeal as untimely filed. We noted that the Agency issued its final determination decision regarding settlement agreement breach allegations on October 16, 2019. The Agency then issued an addendum to that decision on October 19, 2019. On November 20, 2019, Complainant’s attorney provided the Agency with a copy of an appeal purportedly filed with EEOC. However, that appeal was not received or docketed by EEOC until the Agency sent in its copy of the appeal, which was beyond the requisite filing period. In EEOC Appeal No. 2021001098, we based the dismissal on our belief that the appeal filed by Complainant’s attorney was sent in by U.S. mail. We noted that on the certificate of service, Complainant’s attorney used a defunct P.O. Box number for the Commission that has not been used in over 10 years and it appeared the correspondence was never delivered. As Complainant had been provided the correct address in the Agency’s final decision, we dismissed the appeal as untimely filed. However, upon closer review of our records, it has now been determined that Complainant’s attorney also filed the appeal by facsimile to a proper EEOC fax number in a timely manner. 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. 2021003027 2 This facsimile was apparently inadvertently misfiled. Accordingly, on our own motion, we reconsider our decision in EEOC Appeal No. 2021001098 and now find that Complainant’s appeal was timely filed by facsimile. As such, we will now address the merits of that appeal. BACKGROUND Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 1, 2006, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 1. Offer [Complainant] the flexible position of Recreation Aide, NF-0189-01, at the salary of ten dollars ($10.00) an hour. 2. Change the Standard Form 50 terminating her from her position to a resignation after she submits Standard Form 52 designating she resigned for medical reasons. 3. The letter of termination and any reference to the removal action of [Complainant] will be destroyed. By email to the Agency dated September 9, 2019, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement its terms. Complainant asserted that when she received her Official Personnel Folder (OPF) and discovered a Personnel Action Report (PAR) that reflected that she had been terminated. In its October 16, 2019 FAD, the Agency concluded it was not in breach of the agreement. The Agency explained that, at the time the settlement agreement was made, the PAR was configured to auto-populate the term “Terminated” when employees left the organization for any reason other than retirement. The term “Terminated” was not an indication of whether the employee left the Agency voluntarily or involuntarily. The Agency noted that recent changes to the program now include the display of “Separated” instead of “Terminated” for employees who leave the organization voluntarily for reasons other than retirement. The Agency also noted that because of the recent change, its Personnel Branch generated a new PAR to replace the prior one to reflect that Complainant was “Separated” not “Terminated.” The Agency noted that Block 28 of the relevant PAR form remained unchanged and reflects, as it did in the original, “voluntary resignation due to medical”. The Agency attached a copy of the revised PAR to its decision. In its addendum, the Agency stated that it had submitted a request to the National Archives and Records Administration for a copy of Complainant’s OPF, and represented that once it was received it would expunge the PAR report dated March 15, 2006, and replace it with the modified PAR report of October 16, 2019. The instant appeal from Complainant followed. 2021003027 3 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). Here, we note that Complainant raises her breach allegation over 13 years after the settlement agreement was signed and after her OPF was no longer stored at the Agency. Upon learning of the breach allegation, the record shows the Agency acted promptly to remedy the situation. However, given the amount of time that has passed, it had to request the OPF from the National Archives and Records Center. The Agency has sufficiently explained that the use of the word “Terminated” at the time the record was created pursuant to the settlement agreement did not mean involuntarily removed from employment when read in conjunction with Block 28 of the form that indicates Complainant “voluntarily resigned for medical [reasons].” Thus, it appears that Agency was in compliance with the terms of the settlement agreement. Moreover, the Agency has now requested Complainant’s OPF from storage and will change the word on the relevant PAR to “Seperated”, the terminology currently in use for voluntary separations. Accordingly, we find that the Agency is not in breach of the agreement. Because we are addressing the merits of this matter for the first time, Complainant is again being given the right to seek reconsideration of our decision. 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. 2021003027 4 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; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her 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 Street, 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. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/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. 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. 2021003027 5 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 April 28, 2021 Date Copy with citationCopy as parenthetical citation