Zachariah W.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

0120182010 (E.E.O.C. Sep. 19, 2019)

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

Zachariah W.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120182010

Agency No. ARCARSON17AUG03010

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from two final decisions by the Agency dated April 26, 2018 and May 8, 2018,
finding that it was in compliance with the terms of a November 14, 2017 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

On November 14, 2017, Complainant and the Agency entered into a settlement agreement to
resolve a matter which had been pursued in the EEO process. The November 14, 2017
settlement agreement provided, in pertinent part, that the Agency agrees to:

3.a. To continue to detail the Complainant from his position as a Public Safety
Dispatcher, Directorate of Emergency Services to the position of
Management Assistant for Fire and Emergency Services until 25
November 201[7]. On 26 November 2017, Complainant will be on annual

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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leave until 9 December 201[7].2 On 10 December 2017, Complainant will
be placed on administrative leave until 17 March 2018. On 18 March
2018, Complainant will be held in a nonpaid duty status (leave without
pay status) until 16 June 2018.

3.b. Within 30 days of this agreement, initiate paperwork to expunge from
Complainant’s electronic official personnel file (eOPF) all references to
the letter of reprimand dated 8 September 2017 and the performance
improvement plan (PIP) dated 31 August 2017 completed 28 October
2017. However, the agency may retain a copy of this agreement and other
case related documents maintained at the Fort Carson Civilian Personnel
Advisory Center, the Equal Employment Opportunity Office and the Staff
Judge Advocate’s Office. This agreement does not promise to reconstruct,
correct or expunge pay files or any other file of the Defense Finance and
Accounting Service (DFAS) or any other files of any other entity, office,
or agency. There is no implied promise to correct, adjust or expunge time
and attendance files, performance appraisals or other documents or to
search for and expunge any direct or indirect reference in e-mail or any
other agency document not named here.

3.c. Within 30 days of this agreement, initiate paperwork to change the
Complainant’s appraisal for the period covering “1 May 2016 thru 31
January 2017” and “1 February 2017 thru 31 January 2018” to reflect a
rating of 3 – Successful in the overall performance rating in part V of a
DA Form 7223. All parties agree that some minor adjustments to the data
and comments and signatures and dates in the attached forms may be
made. The Agency will not be able to upload the new appraisal to the
electronic record unless Complainant signs the revised DA Form 7223 and
returns it.

. . .

5. Other than the promises in paragraph 3.a. above, Complainant agrees that
the Army makes no promises concerning any communication to or
decision by the Office of Personnel Management (OPM) or the Army
Benefits Center (ABC), the US Department of Labor (DOL), Defense
Finance and Accounting Service (DFAS), the Colorado Department of
Labor, or any similar governmental inquiry or investigative request

2 The record reflects that two dates in provision 3.a. were initially, and inadvertently, identified
as November 25, 2018, and December 9, 2018, instead of November 25, 2017 and December 9,
2017. The record reflects further that these errors were discovered, Complainant’s representative
initialed and dated the corrections on December 18, 2017, Complainant had been informed of the
errors, and made no objection at that time that he had relied upon the original incorrect dates.
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concerning Complainant’s retirement, medical retirement, medical
disability, Workers compensation or unemployment or any similar benefit.
Such matters are NOT governed by this agreement and shall NOT under
any circumstances constitute a breach of this agreement. And no decision
or action by the Office of Personnel Management (OPM) or the Army
Benefits Center (ABC), the US Department of Labor, Defense Finance
and Accounting Services (DFAS), the Colorado Department of Labor, or
any similar governmental entity shall void or breach this Agreement under
any circumstances. There are no assurances, estimates, communications
or unwritten promises regarding the Complainant’s desire to seek
retirement, medical retirement, medical disability, Workers compensation
or unemployment or any other benefit.

By letter to the Agency dated March 30, 2018, Complainant alleged that the Agency breached
the subject agreement. Specifically, Complainant alleged that his appraisals were not timely
entered into the system.

On April 10, 2018, Complainant submitted another letter alleging breach of the November 14,
2017 settlement agreement. Complainant claimed that “because the backdating was illegal, the
effective date of the SF-50 can be no earlier than the document creation date of 11 April 2018.
Therefore, I should have been kept in some sort of ‘paid’ status from 3/18/2018 through
4/10/2018, which per my regular work schedule, would have amounted to 12, 12-hour shifts, or
144 hours, pay fraudulently taken from me and should still be owed/paid.”

Complainant further claimed that since the information given in the NSA was “false, namely that
Annual/Sick leave would continue to accumulate while in LWOP status, and it has not proven so
as shown on the LES (ATTACHMENT 5), a fixed amount of Annual/Sick Leave is ‘on the
books’ through 6/16/18, and application of those hours should not/would not be a problem.
Please note JAG failed to reply to my request to use the leave after the last e-mail entry 3/30/18,
and EEO failed to answer a simple request for a CPAC POC as to who stated that I could not use
my Annual Leave.”3

Complainant also argued that the as of April 10, 2018, Director of Emergency Service “has
negligently failed to provide such Notice even though they were aware as of/prior to 18 March
2018 that my paycheck, or lack of a paycheck, could not cover such benefit premiums. Because
these required OPM actions were not taken and no SF-50 was entered ‘into the system’ on the
required dates, technically I am still in Administrative Leave status rather than LWOP, and they
(DES) have breached the NSA by failing to properly place me in legal, properly documented
LWOP status with the required SF-50 in the ‘system’ as of 18 March 2018.

3 The following abbreviations used in this decision: Leave and Earnings (LES), Judge Advocate
General (JAG), and Civilian Personnel Advisory Center Point of Contact (CPAC POC).
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Because we are not 24 days into the 31-day period without the required Notice, as soon as I
confirmed with CPAC that the SF-50 was not in the ‘system’ and researched the OPM
requirements, I immediately e-mailed Fort Carson EEO requesting Immediate Action to rectify
the problem.”

On April 26, 2018, the Agency issued its final decision (“FAD 1”) finding no breach of the
November 14, 2017 settlement agreement. The Agency complied with provision 3.c. of the
settlement agreement by having Complainant’s appraisals were entered and that he had not
claimed that the ratings were incorrect. The Agency noted that instead Complainant appeared to
allege that a breach occurred because the appraisals were not timely entered into the system. The
Agency maintained that the settlement agreement clearly stated that within 30 days of the
agreement, the Agency would initiate paperwork to change Complainant’s appraisals which it
did.

Further, the Agency explained that the mistake of the date November 25, 2018 was clear as
demonstrated by the date November 26, 2017 for the next action immediately following. The
same is true of the mistake date of 9 December 2018, as it is followed by the date of 10
December 2017. The Complainant, in his resignation effective 3/18/2018 stated he ‘WILL
THEN BE PLACED ON LWOP STATUS UNTIL 06/18/2018.’ Had the Complainant relied on
the mistaken dates, he would not have resigned effective 17 March 2018 or stated that he would
be on LWOP status until 18 June 2018, as these dates clearly predate the mistaken dates
[emphasis in its original].”

The Agency also noted that during the relevant period Complainant did not have enough annual
leave to cover the time period of November 26, 2017 to the “mistaken date” of December 9,
2018. The Agency stated that during the relevant period Complainant did not attempt to stay or
suggest that he should remain in the Management Assistant for Fire and Emergency Services
until the mistake date of November 25, 2018 “rather on 26 November 2017, the Complainant
went on annual leave until 9 December 2017 and then he was on administrative leave from 10
December 2017 to 17 March 2018.”

The Agency maintained that the errors were discovered and thereafter, as noted above,
Complainant’s union steward initiated and dated the corrections on December 18, 2017.
Complainant was notified of the errors but did not object or claim that he relied upon the
incorrect dates.

In support of its contentions, the Agency submitted a copy of the Branch Chief for Department
of Emergency Services (“DES”), Emergency Communications’, also Complainant’s senior rater,
declaration dated April 10, 2018. Therein, the Branch Chief explained that per the negotiated
settlement agreement (“NSA”), she was directed to begin processing the documents in order to
comply with the terms of the agreement “which I did immediately. The appraisals for 1 May
2016 thru 31 January 2017 and 1 February 2017 thru 31 January 2018 were to reflect a rating of
3 - - Successful.”

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The Branch Chief stated that the first step was to change the appraisal for the period covering
March 1, 2016 through January 31, 2017 and “replace it with one that complied with the terms of
the NSA. Although the process of changing the documentation was started immediately the
appraisal was not uploaded due to a problem with the system. The effective date is listed as 19
December 2017.”

Further, the Branch Chief noted that the appraisal for the period February 1, 2017 through
January 31, 2018 was prepared “however, I was advised that it could not be uploaded to the
system until 31 January 2018, which was done. The effective date is listed as 1 February 2018.”

On May 8, 2018, the Agency issued another final decision (“FAD 2”) finding no breach of the
November 14, 2017 settlement agreement. Specifically, the Agency noted that in his April 10,
2018 letter, Complainant stated that his claim of noncompliance was in regard to provision 3.a.
which states that on March 18, 2018, he would be held in a non-paid duty status (LWOP) until
June 16, 2018. Complainant then referenced OPM guidelines regarding his LWOP but he did
not allege that any promises that were actually included in the settlement agreement were
breached.

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).

As a threshold matter, we note that Complainant’s appellate statement contains a panoply of
arguments, some of which are difficult to discern. He makes repeated reference to a variety of
sources, such as Barron’s Law Dictionary, the Restatement of Torts 2d, the “Reasonable Person”
concept, and the Restatement of Contracts, the Federal Rules of Civil Procedure and the laws of
the state of Colorado, among other matters. Moreover, he makes explicit reference to matters
that were not memorialized in the four corners of the subject agreement.
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We expressly note Complainant’s discussion of matters raised “during negotiations, and
questions his wife made, who apparently sat in on the end of the discussions.” Complainant also
attempts to rely on mistaken dates which were corrected, as noted in footnote 2.

We find it unnecessary to address Complainant’s extensive arguments seriatim, although we will
address various specific assertions as more fully detailed below. We have thoroughly examined
the affirmative Agency obligations. The instant settlement agreement imposed upon the Agency
the following affirmative obligations as follows: provision 3.a. to allow Complainant to continue
his detail until November 25, 2017 and began annual leave on November 26, 2017 until
December 9, 2017. On December 10, 2017, Complainant would be placed on administrative
leave until March 17, 2018, and on March 18, 2018, he would be placed in a nonpaid duty status
(LWOP) until June 16, 2018; and provision 3.c. within 30 days of the agreement, the Agency
would initiate paperwork to change Complainant’s appraisals to reflect a rating of 3 - -
Successful.

We find that the Agency complied with the instant settlement agreement. We note that
Complainant’s claim regarding OPM and related documents are specifically excluded from the
instant settlement agreement. Finally, we note that Complainant claimed that there was a breach
because his appraisals were not timely entered into the system. We note that brief failure to
satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial
compliance of its terms, especially when all required actions were subsequently completed.
Mopsick v. Department of Health and Human Services, EEOC Appeal No. 0120073654 (August
17, 2009) (citing Lazarte v. Department of Interior, EEOC Appeal No. 01954274 (April 25,
1996)).

CONCLUSION

The Agency’s April 26, 2018 and May 8, 2018 final decisions finding no breach of the
November 14, 2017 settlement agreement is AFFIRMED.

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.
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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 (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.
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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

September 19, 2019
Date