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

Equal Employment Opportunity Commission

May 18, 2022

Appeal No. 2022000695 (E.E.O.C. May. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilburn M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000695 Agency No. ARCELA21JUN02305 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated December 16, 2021, finding that it complied with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. §§ 1614.402; 1614.405; and 1614.504(b). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Project Manager, GS-13, in the Agency’s South Pacific Border (SPB) District in Phoenix, Arizona. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 1, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (5) The Agency and the Complainant agree to the following terms: (a) The Agency agrees to waive half of the remaining balance of the repayment of the relocation bonus paid to Complainant. The remaining balance, based on the departure date of 25 September 2021, is 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. 2022000695 2 estimated in the amount of $17,141.63. The terms of repayment will be defined by the Defense Finance and Accounting Service. Final balance will be determined by exact departure date. . . . (c) The Complainant agrees to pay half of the remaining balance of his relocation bonus in the estimated amount of $8,570.81. By letter to the Agency dated November 15, 2021, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency remove the requirement for him to repay the relocation bonus. Specifically, Complainant alleged that the Agency failed to calculate four additional days he worked (September 26 to September 29, 2021) at SPB into the repayment calculation of his relocation bonus and that the Agency retaliated against him when it wrongfully coded his employment change as “pending separation” rather than “transferring” when he transferred from SPB to the South Pacific Albuquerque (SPA) District in New Mexico. In its December 16, 2021 FAD, the Agency found that it fully complied with the September 1, 2021 settlement agreement with Complainant. The instant appeal from Complainant followed. Complainant provided an email dated September 24, 2021 to management stating, “Since this is my last day with SPB and we were unable to fully award all projects today as we had initially planned a few weeks ago, will I still be providing support on this going into next week?” Complainant stated that he did not mind doing so. In an email response, on September 27, 2021, management stated, “I would expect in the interest of SPA and SPB you would see these through until award.” In opposition to Complainant’s appeal, the Agency stated that Complainant was an employee of its SPA District and relocated to its SPB District so the Agency agreed to provide a relocation incentive/bonus for three years of service (July 19, 2020 to July 15, 2023) with SPB for a total of $28,353.60. The Agency stated that the bonus was to be paid in two, equal lump sums when (1) Complainant established residence near SPB and (2) after a year of service at SPB. The Agency stated, on October 25, 2020, an administrative error resulted in Complainant receiving the full $28,353.60 bonus at one time. The Agency stated, pursuant to the settlement agreement, the parties agreed that Complainant’s last day of service at SPB would be September 25, 2021 and first day of return service to SPA would be September 26, 2021. The Agency stated that a personnel action reflects these dates so Complainant is not entitled to an adjustment.2 The Agency noted that Complainant submitted email communications between September 26, 2021 and September 29, 2021 to show he was still an employee at SPB, but that was not the case. The Agency stated that Complainant reached out to management and agreed to support several actions through SPB through the end of the fiscal year, but the work was for SPA. 2 The record contains a Notification of Personnel Action reflecting a change to lower grade, level or band from a GS-13 position in Phoenix, Arizona to a GS-12 position in Albuquerque, New Mexico. The effective date of transfer to SPA is September 26, 2021. 2022000695 3 Further, management stated that there was an administrative error that caused Complainant not to be paid after he transferred and that task was performed by staff who are not in Complainant’s supervisory chain. The Agency stated that it quickly corrected the pay error once it learned of it. 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 Defense, 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, the Agency agreed to waive half of a relocation bonus Complainant owed for departing his SPB relocation early. The parties agreed that Complainant’s half of the remaining balance was $8,570.81 based on a departure date of September 25, 2021 from SPB. Complainant alleged that he performed additional work for SPB from September 26 to September 29, 2021 so the Agency should reduce his balance owed. We disagree with Complainant and affirm the Agency’s finding of compliance with provision (5)(a). The record supports the fact that Complainant’s SPB departure was September 25 and transfer to SPA was September 26. We note, even if we found noncompliance here, removal of the requirement to repay his half of the relocation bonus would not have been appropriate ordered relief. See 29 C.F.R. § 1614.504(c). Regarding Complainant’s allegation of retaliation, pursuant to 29 C.F.R. § 1614.504(c), “allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints under [29 C.F.R.] § 1614.106.” CONCLUSION Based on the above, we AFFIRM the final agency decision finding no breach. 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: 2022000695 4 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 Equal 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; 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). 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. 2022000695 5 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 May 18, 2022 Date