Janee S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Mar 19, 2019

0120180648 (E.E.O.C. Mar. 19, 2019)

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

Janee S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.

Appeal No. 0120180648

Agency No. DHANCR160044

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) in accordance with the terms of the settlement agreement and 29 C.F.R. §
1614.504(b), which allow Complainant to appeal thirty-five days after she served the Agency
with her allegations of noncompliance. The Agency did not issue a decision in response to
Complainant’s breach claim. We accept Complainant’s appeal.

BACKGROUND

At the time of events giving rise to this compliance action, Complainant was an employee at an
Agency facility on Fort Belvoir, Virginia.

On May 12, 2017, Complainant and the Agency entered into a settlement agreement to resolve
an EEO matter. The settlement agreement provided, in pertinent part, that:

(1) The parties hereby voluntarily enter into the following global Agreement
in full and final settlement of all of [Complainant’s] litigation and
complaints currently pending against the Agency, including but not
limited to Agency Docket Number DHANCR 16-0044, and any and all
claims related [Complainant’s] foregoing complaint. This Agreement is a

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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complete accord and satisfaction of any and all claims, including any and
all equitable and legal relief, except what is included here.

(2) The Agreement constitutes the complete understanding between
[Complainant] and the Agency and is binding upon the parties their
successors, and their representatives.

. . .

(3c) Within thirty (30) calendar days of the effective date of this Agreement,
the Agency will remove the original evaluation for the rating period
2015/07/01 to 2016/06/30 from [Complainant’s] Official Personnel File
(OPF) and Defense Civilian Personnel Data System and replace it with the
revised evaluation as described in paragraphs 3a and 3b above. Within
sixty (60) calendar days of the effective date of this Agreement, the
Agency will confirm that it removed the original evaluation and replaced
it with the revised evaluation by providing a copy of [Complainant’s]
OPF.

The Agency signed the Agreement on May 16, 2017, which was the effective date. Sixty days
later, the Agency was to confirm that it replaced her old evaluation and provide a copy in
Complainant’s OPF. Complainant reviewed her eOPF and noticed that the prior appraisal had not
been replaced with the new evaluation. Complainant’s attorney contacted the Agency twice. The
attorney first contacted the Agency on July 25, 2017, and again on July 28, 2017, to notify the
Agency that the old appraisal remained in Complainant’s eOPF. On that same date (July 28,
2017), the Agency’s representative responded to Complainant, stating: “We’ve made our best
efforts to upload the document, and up to this point, thought it had been done. We will keep
trying.”

On August 9, 2017, in response to a request from the Agency, Complainant’s representative
provided the Agency with additional information regarding Complainant’s new “sub-
agency/department of employment,” because Complainant had moved to a different unit.

By letter to the Agency dated August 14, 2017, Complainant alleged that the Agency was in
breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to
comply with provision 3c to substitute a new evaluation and provide her with a corrected copy of
her OPF. She requested that the Agency implement its terms.

After the Agency did not issue a Decision, Complainant filed this appeal seeking enforcement of
the terms of the Agreement.

On appeal, Complainant maintains that the Agency has not complied with the terms of the
Agreement 3c and seeks enforcement. Complainant also seeks reimbursement for the attorney’s
fees which she incurred in seeking compliance.
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The Agency did not file a brief in opposition to the appeal.

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).

We find that the Agreement was valid and binding on both parties.

In the instant case, the Agreement included a time specific date for the Agency to substitute the
old evaluation with the replacement evaluation. It was supposed to be “within thirty (30)
calendar days of the effective date of this Agreement” or by June 16, 2017. The Agreement also
required the Agency to notify Complainant that it had removed the old evaluation and replaced it
with the revised evaluation by providing a copy of Complainant’s OPF by July 17, 2017. On
August 8, 2017, the Agency’s representative contacted Complainant’s attorney, asking for
additional information so that the Agency could “finally get the appraisal uploaded.” The
Agreement did not address the parties’ expectation in the event Complainant changed location or
there was difficulty in accessing her OPF. The Agreement also did not address the issue of
attorney’s fees.

The record before us supports Complainant’s claim that the Agency has not met its obligations
under the terms of this Agreement. We find, therefore, that there was a breach. Where this
Commission finds that the settlement agreement has been breached, the only two remedies
usually available are specific performance of the terms of the agreement or reinstatement of the
underlying EEO complaint at the point processing ceased. See 29 C.F.R. § 1614.504 (c). Here,
Complainant has requested specific performance of the terms of the agreement.

We find that any waivers that Complainant did make in the Agreement were contingent on the
Agency’s compliance with the terms set forth in this Agreement. Consequently, we find that
Complainant did not knowingly waive and release the Agency from any claims for future
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damages in the form of fees that Complainant incurred after the execution of the Agreement and
that were required for her to obtain compliance.

We further find that Complainant, as the prevailing party, is entitled to specific performance, as
well as the recovery of damages incurred as a result of the noncompliance. See Aurore C. v.
Department of Veterans Affairs (Veterans Health Administration), EEOC Appeal No.
0120150961 (April 14, 2016) (OFO awarded attorney’s fees and recovery of damages incurred
as a result of the Agency’s breach, rescinding an offer of employment).

Accordingly, we find there was a breach, grant Complainant’s request for enforcement and allow
her to recover her damages (attorney’s fees) in this unusual circumstance, where the Agency
acknowledged that it did not comply, did not issue a decision, and did not file a brief in
opposition to the Complainant’s appeal.

CONCLUSION

We find that that the Agency breached the Agreement and that Complainant is the prevailing
party in this appeal. We REMAND the matter to the Agency for action in accordance with the
ORDER below.

ORDER
The Agency is ordered to take the following remedial action:
I. Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered
to fully comply with provision 3(c) of the settlement agreement and substitute the agreed-
upon new evaluation for the original in Complainant’s Official Personnel File (OPF) and
the Defense Civilian Personnel Data System. The Agency will confirm that it has
removed the original evaluation and replaced it with the revised evaluation by providing
Complainant with the corrected copy of her OPF.

II. No later than sixty (60) calendar days after the date this decision is issued, the Agency
shall determine the appropriate amount of attorney’s fees and legal costs incurred by
Complainant to enforce the agreement, and issue both a written decision on its
determination with appeal rights to this Commission and the actual payment to
Complainant. Within thirty (30) calendar days of the date this decision is issued,
Complainant shall file an attorney’s fee petition with the Agency, pursuant to 29 C.F.R.
§1614.501(e)(2). The Agency shall use this petition to determine the amount of attorney’s
fees owed.
If there is a dispute regarding the exact amount of the fees, the Agency shall issue a check
to the Complainant for the undisputed amount within sixty (60) calendar days of the date
the Agency determines the amount it believes to be due. The Complainant may petition
for enforcement or clarification of the amount in dispute. The petition for clarification or
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enforcement must be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of relief and
benefits due Complainant, including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(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 the date this decision was issued. 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 tends 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. “Agency” or “department” means the national organization, and not the local office,
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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

March 19, 2019
Date