Elsa R.1 Complainants,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 22, 2019

0120180294 (E.E.O.C. Feb. 22, 2019)

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

Sade M.,
and

Elsa R.1
Complainants,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal Nos. 0120180292
0120180294

Agency Nos. AREBELVOIR15MAY01898
AREBELVOIR15MAY01899

DECISION

Complainant 1 and Complainant 2 filed timely appeals with the Equal Employment Opportunity
Commission (EEOC or Commission) from a consolidated final agency decision (FAD) by the
Agency dated September 21, 2017, finding that it was in compliance with the terms of the
settlement agreements 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. We consolidate these appeals for joint processing
pursuant to 29 C.F.R. § 1614.606.

ISSUE PRESENTED

The issue presented is whether the Agency is in compliance with the terms of the March 28, 2017,
settlement agreements.

1 This case has been randomly assigned a pseudonym which will replace Complainants’ name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant 1 worked as a Health System
Specialist and Complainant 2 worked as a Telehealth Clinical Analyst. Complainants, who are
sisters, both worked at the Agency’s Regional Health Command Atlantic in Arlington, Virginia.
Believing that the Agency subjected them to unlawful discrimination, Complainants initiated the
EEO complaint process, filed EEO complaints, and each requested a hearing before an EEOC
Administrative Judge.

During the hearing process, Complainant 1 and Complainant 2 each entered into a separate
settlement agreement on March 28, 2017, with the Agency to resolve their complaints. Both
settlement agreements provided, in pertinent part, that the Agency agreed to the following:

4.(a) Allow Complainants to telework five days per week;

(b) Pay Complainant 1 $95,000 and pay Complainant 2 $99,000;

(c) Restore annual leave in the amount of 286.6 hours of annual leave and 172 hours of sick
leave for each Complainant;

(d) Modify Complainants’ 2015 and 2016 year-end performance appraisals to reflect ratings
of “Exceeds 5+”;

(e) Pay attorney’s fees in amounts of $25,005 to Complainant 1 and $25,001 to Complainant
2.

15. [T]o complete all personnel actions within 30 calendar days of this agreement. . . . [and] to
submit any further documentation required to make any payments required under this
agreement to the Defense Finance and Accounting Service (DFAS) within 30 calendar days
of this agreement. The Agency agrees to notify Complainant when it submits its
documentation for payment to DFAS. . . . If DFAS does not process payment within 180
calendar days of the effective date of this agreement, this Agreement will be considered
breached.

By letter to the Agency dated May 26, 2017, Complainants, through their attorney, alleged that the
Agency was in non-compliance with all the above provisions in each settlement agreement, and
requested that the Agency specifically implement the terms in each agreement. On June 27, 2017,
the Agency issued a FAD, agreeing with Complainants that it had not complied with all the terms
of both settlement agreements. The Agency therefore ordered itself to fully implement the terms
of the agreements and instructed that a report of compliance must be submitted to each
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Complainant within 30 days from the date of the issuance of the FAD. 2 On August 3, 2017,
Complainants sent the Agency a second letter of non-compliance. Therein, Complainants asserted
that the Agency had not submitted its compliance report or complied with provisions 4(b)-(e) of
the agreements.

Subsequently, on September 21, 2017, the Agency issued its second FAD, finding that it was now
in substantial compliance with the settlement agreements. Therein, the Agency noted that
payments were made to each Complainant in the amounts of $95,000 and $99,000, respectively.
The Agency also noted that its personnel records showed that the ratings for both Complainants,
for annual performance appraisals 2015 and 2016, reflected ratings at the level 5 Exceptional level.
The Agency additionally responded that Complainants’ attorney was paid the amounts of $25,005
and $25,001, respectively. With regard to its compliance with provision 4(c), the Agency noted
that it submitted documentation to the DFAS to restore the annual leave and sick leave to
Complainants’ accounts. But it could not determine when the action could be completed because
it has no control over the DFAS. The Agency acknowledged, however, that it did not submit
evidence proving that it submitted the required documentation to the DFAS to restore the agreed
upon leave. The Agency nevertheless found that Complainants failed to establish any harm from
the delay in restoring the leave. In sum, the Agency found that it was in substantial compliance
with the settlement agreements.

CONTENTIONS ON APPEAL

On appeal, Complainants, through their attorney, maintain that the Agency is not in compliance
with provision 4(c) of the settlement agreements. Complainants maintain that they have not
received “clear” evidence from the Agency that the DFAS is properly processing their leave
restoration. Complainants state that they have retired and have not received lump sum payments
reflecting the proper amounts of the restored leave. Complainants specifically state that they have
not received evidence that the DFAS is actually processing the correct amount of restored leave
for calculating their annuities.

In response to Complainants’ appeals, the Agency submitted a 3-page document for Complainant 1
that appears to be DFAS paperwork dated October 5, 2017 that shows a correction to Complainant
1’s employee data and a lump sum payment for leave restored. The amount of leave restored does
not appear to match exactly what was agreed to in the settlement agreement. There is not a
corresponding document in the record for Complainant 2.

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

2 The Agency also ordered attorney’s fees incurred with respect to Complainants’ allegation of
non-compliance dated May 26, 2017.
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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, we note that provision 4(c) requires the Agency to restore annual leave in the
amount of 286.6 hours and sick leave in the amount of 172 hours for each Complainant. In its
September 21, 2017 FAD, the Agency stated that it submitted documentation to the DFAS to
restore the annual leave and sick leave to Complainants’ accounts. But it could not determine when
the action could be completed because it has no control over the DFAS.

Upon review, we note that the Agency has not provided any documentation in the record
demonstrating that it submitted the proper paperwork to the DFAS necessary to restore
Complainants’ leave. In its September 21, 2017 FAD, the Agency acknowledged that it did not
submit evidence proving that it submitted the required documentation to the DFAS to restore the
agreed upon leave. The October 5, 2017 DFAS paperwork for Complainant 1 does not
demonstrate complete compliance with provision 4(c) and does not suffice to demonstrate
compliance with provision 15, namely that the Agency “notify Complainant when it submits its
documentation for payment to DFAS.” Further there is no documentation at all for Complainant 2
in this regard.

There is no dispute that the 180-day time limitation agreed to in provision 15 has elapsed, and we
find that the Agency has been given more than a reasonable time to show that it has complied with
the provision. Therefore, we find that the Agency has breached provision 4(c) of each settlement
agreement. See Ward v. Dep’t of the Army, EEOC Appeal No. 01A45705 (Dec. 29, 2004) (finding
a settlement breach when the agency did not provide any documentation in the record
demonstrating that it completed the paperwork necessary for DFAS to restore complainant’s
leave).

Where this Commission finds that a settlement agreement has been breached, as here, the only two
remedies available are specific performance of the terms of the agreement or reinstatement of the
underlying EEO complaint at the point processing ceased. Complainants may also recover any
attorney’s fees incurred as a result of the breach. Here, Complainants seek specific performance
of the agreements and attorney’s fees for each instant breach. We therefore instruct the Agency to
comply with the Order as set forth below.

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CONCLUSION

Accordingly, the Commission MODIFIES the Agency’s determination that there was no
settlement breach and REMANDS this matter to the Agency for further action in accordance with
this decision and the ORDER below.

ORDER

The Agency is ordered to take the following remedial action:

Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide
documentation to Complainants showing that the proper paperwork has been submitted to
the DFAS for the restoration of Complainants’ leave in accordance with provision 4(c) of
each settlement agreement.

ATTORNEY’S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 16l4.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of this decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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.
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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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. If you file a civil action, you must name as the defendant in the complaint the
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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

February 22, 2019
Date