Terrance A.v.Dep’t of the Treasury

Equal Employment Opportunity Commission

Jan 24, 2020

EEOC Appeal No. 2019005518 (E.E.O.C. Jan. 24, 2020)

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

Terrance A.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 2019005518

Agency Nos. TIGTA-18-0349-F; TIGTA-19-0197-F

EEOC Hearing No. 570-2019-00149X

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated July 24, 2019, finding that it
was in compliance 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

At the time of events giving rise to this compliance action, Complainant worked as an Assistant
Special Agent at the Agency’s Office of the Treasury Inspector General for Tax Administration
(TIGTA) facility in Washington, D.C.

On April 24, 2019, Complainant and the Agency entered into a settlement agreement to resolve
several EEO matters. The settlement agreement provided, in pertinent part, that:

(1) The Complainant agrees that his execution of this Settlement Agreement operates
as his complete and voluntary withdrawal, with prejudice, of the appeals and
claims in the following administrative proceedings: Complainant v. Department

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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of the Treasury, EEOC No 570-2019-00149X and TD Case No. TIGTA-19-0197-
F, and all claims raised, or which could have been raised therein.
. . .

(3a) Complainant shall have priority consideration for any acting assignment
for Special Agent in Charge (SAC) or Deputy Special Agent in Charge
(DSAC) positions that become available in the 48 months after execution
of this Agreement. An acting assignment will last no more than one week
to 30 calendar days. The Agency commits to giving Complainant this
priority consideration for no more than four acting assignments in the 48
months after execution of this Agreement. Acting SAC/DSAC
opportunities that are declined by Complainant will not count towards the
four acting assignments in the 48 months after execution of this
Agreement.
. . .

(3i) Complainant will be considered for Acting SAC-Operations opportunities
in the normal course of business, consistent with workload and schedules.
. . .

(10) This Agreement represents the parties’ entire agreement. No other
provisions or amendments thereto shall have any force or effect unless set
forth in writing and signed and dated by all parties or their designees and
attached to this Agreement. By executing this Agreement, the parties
further acknowledge: that they each understand its terms; that such terms
are acceptable to each; that there are no additional obligations, either
written or oral, to be performed by either party beyond those set forth
herein; that such terms are final and binding as to all claims that have been
brought or could have been advanced on behalf of the Complainant
against TIGTA or the Department of the Treasury; and that the parties
voluntarily enter into this Agreement without duress, coercion, or undue
influence.

By letters to the Agency dated May 21, 2019, June 5, 2019, and June 18, 2019, Complainant
alleged that the Agency was in breach of the settlement agreement provision 3a and 3i.
Specifically, Complainant alleged that the Agency failed to provide priority consideration for
acting assignments for Special Agent in Charge (SAC) or Deputy Special Agent (DSAC)
positions that became available after the execution of the Agreement and did not consider him
for Acting SAC-Operations opportunities in the normal course of business, consistent with
workload and schedules.
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Complainant identified the following instances of his being bypassed for consideration that
occurred after the execution of the Agreement.

1. On May 6, 2019, Complainant learned that another employee would be reporting to
TIGTA Headquarters to serve on a detail/shadowing assignment as the Acting SAC, to
begin in June. This opportunity was not offered to Complainant.

2. From May 6-18, 2019, another individual served as the Acting SAC – Northeastern Field
Division, an opportunity not offered to Complainant.

3. In May 2019, Complainant was informed by the SAC that in order to act in his absence,
he needed to be in the office rather than teleworking. Complainant was told that he if he
chose to telework, another employee “needs to act.” Complainant believed other
managers were allowed to act while teleworking.

4. On May 20, 2019, the SAC took sick leave for one day and designated another employee
as his Acting SAC, although Complainant was in the office and available to act.

5. From May 20-25, 2019, another individual served as the Acting SAC – Northeastern
Field Division, an opportunity not offered to Complainant.

6. On June 3, 2019, the SAC designated another employee as his Acting SAC (for that one
day) without first offering the opportunity to Complainant.

The Agency conducted an inquiry into Complainant’s allegations. On July 23, 2019, the Agency
issued its final decision concluding no breach of the settlement agreement had occurred. It
provided the following justifications for this conclusion:

• Allegation #1. The Agency concluded that this was not a detail as contemplated by the
terms of the agreement. Instead, an employee from the field who was in Washington for a
few days shadowed the SAC for several hours on one day during the week of June 3.

• Allegation #2. The Agency asserts this detail assignment was made prior to the
execution of the Agreement. Complainant disputes this by noting the Agency’s
“CRIMES” data base shows the assignment was made after the settlement agreement.
However, the Agency produced a March 26 email informing staff of who would be
acting.

• Allegation #3. The SAC offered Complainant the opportunity to be acting on May 10,
but he chose to telework instead. The SAC indicated he required all his subordinate
managers to act from headquarters or a field office, but never from home. He stated the
those who worked in the field (outside of D.C.) reported to their local offices when they
were acting.

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• Allegation #4. The Agency reasoned that this was a last-minute acting assignment
resulting from the SAC being on sick leave for one day only. The Agency reasoned that
this was not the type of event contemplated by the agreement as it referenced acting
assignments of 1 week to 30 days.

• Allegation #5. Same rationale as that for Allegation #2 above.

• Allegation #6. Another last-minute one day acting opportunity.

The Agency also found that Complainant did act for the SAC for the week of June 10, 2019.

This appeal followed. On appeal, Complainant noted that the Department in its decision admitted
that the “precise meaning” of the two disputed provisions is “ambiguous.” Complainant asks that
the Agency decision be reversed and that the Agency be required to abide by the provisions. He
stated that he provided documentary evidence to support his claims the Agency violated the
Agreement by showing there were acting assignments, post-execution of the Agreement, which
were not provided to Complainant.

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, however, we find that critical language in the settlement agreement is too vague to be
enforced. The Agency concedes in its final decision that “the precise meaning of the two
[settlement agreement] provisions at issue, paragraphs 3(a) and 3(i), is ambiguous.” We agree.
Most critically, there is no definition for what was meant by the term “priority consideration” in
paragraph 3(a). Much of the Agency’s justification for its actions was that Complainant was
treated in the same manner as the other three similarly situated managers considered for acting
assignments. Complainant, on the other hand, seems to argue that he was entitled for more
favored treatment. In addition, in paragraph 3(i), there is no definition for the phrase “in the
normal course of business, consistent with workload and schedules.”
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It is very unclear what this means and there are numerous disputes between the parties about
what sort of details are contemplated under the agreement and what are not. The Commission has
previously held that a binding settlement agreement requires a contemporaneous meeting of the
minds. Brown v. Department of Defense, EEOC Request No. 05940628 (November 3, 1994);
Mullen v. Department of the Navy, EEOC Request No. 05890349 (May 18, 1989). Due to the
vagueness and lack of meeting of the minds, the Commission determines that the settlement
agreement in this case is unenforceable and void. The Agency shall be ordered to reinstate the
settled matter from the point processing had ceased.

CONCLUSION

We REVERSE the Agency's decision and REMAND the matter to the Agency to reinstate
Complainant's settled EEO matter from the point where processing had ceased.

ORDER

The Agency shall reinstate Complainant's settled EEO matter from the point processing ceased,
in accordance with 29 C.F.R. Part 1614. The Agency shall acknowledge to Complainant that it
has reinstated processing of the settled EEO matter within 30 days of the date this decision is
issued. A copy of the Agency's letter to Complainant resuming processing of the settled EEO
matter shall be sent to the Compliance Officer referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Compliance with the Commission’s corrective 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). 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 1999). 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.
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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).
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.
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“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

January 24, 2020
Date