[Redacted], Percy K., 1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Dec 29, 2020

Appeal No. 2020003025 (E.E.O.C. Dec. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Percy K.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency. Appeal No. 2020003025 Agency No. HHS-OS-0034-2017 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding his claim that the Agency was in breach 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 The record reflects that the parties entered into an EEO settlement agreement in January 2019. The settlement agreement provided, in pertinent part, that: (9) The Agency settlement official agrees to assist Complainant, to the extent possible, in checking on the processing of any Agency approved leave buy- back in association with his federal workers compensation claim. By letter to the Agency dated December 20, 2019, 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 the Agency failed to comply with provision (9) of the settlement agreement. Specifically, Complainant asserts that OWCP informed him that the Agency has not provided OWCP with the necessary information regarding Complainant’s leave buy back and correction of a life insurance issue. 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. 2020003025 2 The record is devoid of evidence that the Agency issued a final determination (with appeal rights to the Commission) on Complainant’s breach claim. Complainant, through his attorney, filed the instant appeal. On appeal, Complainant requests that we find the Agency is in breach of provision (9) of the settlement agreement. In its response brief, the Agency asserts that it is not in breach of the settlement agreement. The Agency asserts that there are no provisions of the settlement agreement regarding restoration of leave or life insurance. The Agency states that its benefits specialist checked on the status of Complainant’s leave buy back claim on December 20, 2019, January 3, 2020, and January 17, 2020. The Agency asserts that each time OWCP informed the Agency that it was still working on the matter. Based on the foregoing, the Agency found that it was not in breach of the settlement agreement and Complainant was not entitled to attorney’s fees regarding the breach claim. 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). In the instant case, provision (9) of the settlement agreement provided that the Agency agreed to assist Complainant, to the extent possible, in in checking on the processing of any Agency approved leave buy-back in association with his federal workers compensation claim. Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal determinant is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep’t of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep’t of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992)). In the instant case, we find provision (9), is too vague to be enforced. The Commission would be unable to determine whether or not the agency had complied with such a requirement. 2020003025 3 Because the remainder of the settlement agreement contains adequate consideration, the Commission finds that the agreement is hereby reformed without provision (9).2 Accordingly, we find the Agency did not breach the instant settlement agreement.3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2 Provision (8) of the settlement agreement provided, in pertinent part, that the Agency agreed to pay Complainant compensatory damages of $110,000 via direct deposit to Complainant’s attorney of record. Complainant does not allege that the Agency breached provision (8). 3 Because we find no breach, Complainant is not entitled to attorney’s fees with respect to the current breach claim. 2020003025 4 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. 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 29, 2020 Date