[Redacted], Tomeka T., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2021002546 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tomeka T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002546 Agency No. ARHMPHRYS18JUN02494 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) alleging the Agency breached the terms of a December 22, 2020 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 worked as a Clinical Social Worker, GS-0185-2 at the Agency’s Behavioral Health Clinic, Brian Allgood Army Community Hospital facility in Yongsan, South Korea. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 22, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 3. The Army agrees to: a. Pay to the complainant the sum of Forty-Two Thousand and No/100 Dollars ($42,000). 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. 2021002546 2 5. …Within five (5) business days of receipt of the agreement signed by both Complainant and her Attorney, the Army will forward the signed agreement and all necessary paperwork to DFAS for processing. The record shows that on December 16, 2020, prior to Complainant or her counsel signing the Settlement Agreement, Agency counsel emailed Complainant’s counsel. Among other things, the email reminded Complainant’s counsel that the Settlement Agreement could not be submitted to Defense Finance Accounting Services (DFAS) for processing until Complainant provided: (1) the name of Complainant’s bank/financial institution; (2) the address of Complainant’s bank/financial institution; (3) Complainant’s account number; (4) the type of account - checking or savings; (5) the routing number; (6) Complainant’s full name; and (7) Complainant’s current physical/mailing address. On December 22, 2020, the day the Settlement Agreement was signed by all parties, Complainant’s counsel provided all requested information except for the address of Complainant’s bank/financial institution, which was not provided. Nevertheless, on December 23, 2020, Agency counsel emailed the signed Settlement Agreement to the 65th Medical Brigade Resource Management Section to submit to DFAS for processing. Complainant’s counsel provided the address of Complainant’s bank/financial institution on January 6, 2021. This was the last piece of information needed for DFAS to process payment. On January 24, 2021, the Agency then submitted the Standard Form (SF) 3881 containing her financial institution information for Complainant’s payment. On February 17, 2021, an SF 1034 Public Voucher for Purchases and Services other than Personal was signed by the Brian D. Allgood Army Community Hospital Commander and Budget Officer. On March 9, 2021, a Miscellaneous Payment Routing Approval Sheet was given a legal review and approved by Regional Health Command-Pacific. DFAS then processed the payment on March 10, 2021. However, on April 7, 2021, the Agency discovered that DFAS could not process Complainant’s payment because the checking account number provided by Complainant was incorrect and could not be validated. The Agency notified Complainant’s counsel of this on April 8, 2021. Complainant’s counsel provided the Agency with Complainant’s correct bank account number on April 14, 2021. By letter to this Commission dated March 9, 2021 and postmarked March 10, 2021, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to comply with paragraph 5 of the Settlement Agreement, noting that DFAS had continuously denied her receipt of a “Remedy Ticket.” In response to Complainant’s appeal, the Agency filed statement stating it was unable to submit the signed agreement and all necessary paperwork to DFAS in accordance with the Settlement Agreement because Complainant and her counsel failed to provided the required information to the Agency within five (5) business days of receipt of the signed Settlement Agreement. 2021002546 3 The Agency notes it was not provided all the necessary information by Complainant and her counsel until fifteen (15) days after receipt of the signed settlement agreement, and that is learned months later that the checking account number provided by Complainant was incorrect. The Agency states the corrected account number was received on April 14, 2021 and that information was submitted to DFAS to process Complainant’s payment. The Agency essentially states that any noncompliance with the Settlement Agreement was caused by Complainant and/or her counsel. The Agency also noted that Complainant failed to notify them of the alleged breach. 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). As a preliminary matter, we note that there is nothing in the record to show that Complainant filed a breach of settlement allegation directly with the agency as is required by 29 C.F.R. § 1614.504(a). We also noted that she was advised by the EEOC Office of Federal Operations on March 9, 2020, that she needed to do so. The agency never issued a final agency decision on this matter. While it would appear that Complainant's appeal to the Commission is premature, since both parties have addressed the breach issue, we find that the matter is ripe for adjudication. 29 C.F.R. § 1614.504(b). Here, we find the Agency substantially complied with the terms of the December 22, 2020 Settlement Agreement. Although paragraph 5 of the Settlement Agreement requires the Agency to submit all necessary paperwork to DFAS within 5 days of receipt of the signed Settlement Agreement, it is clear the Agency informed Complainant (via her counsel) prior to the signing of the Settlement Agreement that certain information would be needed before the paperwork could be sent to DFAS. Despite this advance notice, the necessary information was not provided until January 6, 2021, more than 5 days after receipt of the signed Settlement Agreement. The record reflects that the Agency did subsequently submit the paperwork to DFAS to process for payment, after receiving this information. Accordingly, we find there is no material breach of the Settlement Agreement. 2021002546 4 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). 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). 2021002546 5 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 21, 2021 Date