[Redacted], Minh G., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jul 13, 2021

Appeal No. 2021002122 (E.E.O.C. Jul. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minh G.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021002122 Agency Nos. BOP-2015-01545; BOP-2016-0288; BOP-2017-014; and BOP-2017-0969 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated February 18, 2021, finding that it was in compliance with the terms of the October 26, 2020 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On October 26, 2020, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The October 26, 2020 settlement agreement provided, in pertinent part, that: The Agency agrees to pay Complainant the lump sum of sixty thousand ($60,000.00) dollars within sixty (60) days of the execution of this agreement. The lump sum will be paid via certified check within sixty (60) days of the execution of this settlement agreement to Complainant’s home address below. This lump sum of $60,000.00 is inclusive of all fees, costs, attorney’s fees, expenses and damages associated with this and all other actions, claims or complaints, and the specific provisions of this agreement. The lump sum amount 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. 2021002122 2 does not represent back pay, front pay or remuneration for the services of Complainant. The lump sum is made without any deductions in full compromise of any and all claims for compensatory damages, as defined by the Civil Rights Act of 1991, 42 USC § 1981a. This payment is not in lieu of wages. The Agency will not withhold any taxes of any kind regarding this lump sum. However, the Department of Justice will file a form 1099-Misc with the Internal Revenue Services (“IRS”) in the name of the Complainant for the lump sum. The determination of the Complainant’s tax liability, if any, is a matter solely between Complainant and IRS and/or state and local tax authorities. The Agency will be held harmless for any liability for such taxes which may be owning on account of the payment of such sums. By letter to the Agency dated December 30, 2020, Complainant alleged breach. Specifically, Complainant alleged that the Agency failed to send the certified check of $60,000.00 within sixty days of the signing of the October 26, 2020 settlement agreement. As a result, Complainant requested to renegotiate the October 26, 2020 settlement agreement “starting with 3x the previous amount or proceed with all four cases going to hearing and allowing the administrative judge to make a decision.” The record indicates that Complainant returned the check to the Agency without cashing it. In its February 18. 2021 final decision, the Agency found no breach. Specifically, the Agency noted that it was required to pay Complainant by December 25, 2020. The Agency asserts, however, that because this date fell on a Federal holiday, the obligation extended until December 28, 2020. The Agency requested that the payment be made on December 23, 2020, and the payment was certified on December 28, 2020 via U.S. Treasury check to his home address. The instant appeal followed. 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). 2021002122 3 In the instant case, we note that the settlement agreement imposed upon the Agency the following affirmative obligation: to assure that the Agency pay Complainant the lump sum of sixty thousand ($60,000.00) dollars within sixty (60) days of the execution of this agreement. The Agency has complied with the settlement agreement. We acknowledge that while Complainant did not receive a physical certified check within the sixty (60) day window, the Agency completed all required steps it was responsible for to ensure payment within the agreed upon time period. The Commission has found in the past that brief failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Mopsick v. Department of Health and Human Services. EEOC Appeal No. 0120073654 (August 17, 2009) (citing Lazarte v. Department of Interior, EEOC Appeal No. 01954274)). The Agency finding of no breach is AFFIRMED. However, as it appears Complainant returned the check to the Agency, we now direct the Agency to re-send Complainant a certified check in the amount of $60,000. We further warn Complainant, however, that if he henceforth does not accept and deposit the certified check presented to him in accordance with this agreement, we will not order the Agency to issue any further checks to him pursuant to the subject settlement agreement. ORDER To the extent that it has not already done so, the Agency shall re-send a certified check in the amount of $60,000, as provided in the settlement agreement, to Complainant within ninety (90) calendar days of the date that this appellate decision is issued. The Agency is further directed to submit a report of compliance, as provided in the “Implementation of the Commission’s Decision.” The report shall include all supporting documentation that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s 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). 2021002122 4 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). 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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). 2021002122 5 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 (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 July 13, 2021 Date