Teddy D,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 23, 2019

0120181621 (E.E.O.C. Aug. 23, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Teddy D,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181621

Agency No. 200306742017104995

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from a final decision (FAD) by the Agency dated March 27, 2018, finding that no
settlement agreement existed and, therefore, there was no settlement breach as alleged. For the
following reasons, we AFFIRM the Agency’s FAD.

BACKGROUND

Complainant was a former employee of the Agency who retired on May 5, 2017, after 19 years
due to health reasons. At the time of events giving rise to this complaint, Complainant alleged he
had applied for a laundry management position, which he previously held, at the Agency’s
Central Texas VA Health Care facility in Waco, Texas. The vacancy announcement was open to
all internal, Agency employees. The vacancy announcement was posted and Complainant
applied after his retirement from the Agency. Complainant contacted an Agency EEO Counselor
and alleged he was discriminatorily not selected.

After the informal counseling stage was complete, Complainant was provided with a Notice of
Right to File a Discrimination Complaint, dated November 30, 2017. This Notice included the
Agency’s Form 4939 for filing a complaint. On December 4, 2017, Complainant received this
Notice and he also participated in a mediation with the EEO Counselor and the selecting official,
who was also his previous supervisor. Complainant did not file a formal complaint.

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.
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Rather, the record reflects on December 4, 2017, Complainant signed a Notice of Withdrawal of
EEO Complaint which stated:

On September 5, 2017, I contacted the Office of Resolution Management to
initiate an equal employment opportunity (EEO) complaint. The EEO counselor
advised me of my rights and responsibilities during the EEO complaint process. I
am withdrawing this EEO complaint in its entirety. I am making this decision of
my own free will and without coercion.

Thereafter, by letter to the Agency dated February 20, 2018, 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 he agreed to drop his EEO claim in
exchange for the opportunity to reapply for a position in the laundry or be reinstated into his
previous position with the Agency. Complainant stated he was never given the chance to reapply
or an offer of employment.

In its March 27, 2018 FAD, the Agency found that no settlement agreement existed between the
parties regarding the underlying complaint. The FAD informed Complainant of his right to
appeal the FAD to this Commission. 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).

EEOC Regulation 29 C.F.R. § 1614.603 requires that any settlement reached shall be in writing
and signed by both parties and shall identify the claims resolved. There are exceptions to the
Commission's policy on written settlement agreements signed by the parties. Oral agreements
reached in the presence of an administrative judge and entered into the hearing transcript are
binding. Acree v. Department of the Navy, EEOC Request No. 05900784 (October 4, 1990).
In the instant case, Complainant concedes in his brief that no written settlement agreement exists.
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Give that the record in the instant case, which contains no evidence of an oral agreement reached
and transcribed in the presence of an AJ, the Commission determines that there is no binding
settlement agreement between the parties.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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).

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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

August 23, 2019
Date