Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 5, 2015

01-2013-2504-0500 (E.E.O.C. Aug. 5, 2015)

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

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120132504

Agency No. DON-11-00183-03974

DECISION

Complainant filed a timely appeal with this Commission from the Agency’s May 20, 2013 final
determination 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 complaint, Complainant worked as a Health Technician
at the Agency’s Naval Medical Center in Portsmouth, Virginia. Believing that the Agency
subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to
initiate the EEO complaint process. On January 9, 2012, Complainant and the Agency entered
into a settlement agreement to resolve the matter. The settlement agreement provided, in
pertinent part, that:

(1) The Agency agrees to cancel Complainant’s Termination During Probationary
Period effective 23 August 2011.

(2) The Agency agrees to process Complainant’s Resignation effective 23 August
2011, in accordance with the attached SF-52.

By letter to the Agency dated May 2, 2013, Complainant alleged that the Agency was in
breach of the settlement agreement, and requested that the Agency specifically implement its
terms. Specifically, Complainant alleged that the Agency failed to cancel his termination.
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Complainant claimed that while looking through his workers’ compensation file, he discovered
that the Agency had sent an SF-50 indicating that he had been terminated during a probationary
period. Complainant requested that the Agency furnish the Office of Workers’ Compensation
Programs (OWCP) with an updated SF-50 with notification that the termination letter be
disregarded.

In its May 20, 2013 FAD, the Agency concluded that it had complied with the settlement
agreement. In particular, the Agency first noted that it did not agree to correct all records;
rather, it agreed to cancel Complainant’s termination during probationary period and process
his resignation. The Agency explained that this was completed on January 24, 2012. The
Agency stated that it did not and could not have agreed to correct all records that may have
referenced the previous termination. However, when Complainant raised concerns regarding
OWCP’s files (which were processed far before the settlement agreement), it acted swiftly to
provide OWCP with the corrected information. The Agency noted that it could not force
OWCP to amend or change their documents. As a result, the Agency determined that it had
not breached the settlement agreement. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency breached the settlement agreement by
sending OWCP an SF-50 indicating that he had been terminated during a probationary period.
In addition, Complainant claims that his OWCP included a four-page termination letter which
alleged charges that he denied. Complainant believes that the Agency maliciously attempted to
influence the result of his workers’ compensation claim. Accordingly, Complainant requests
that the Commission find that the Agency breached the settlement agreement.

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 (Dec. 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 (Aug. 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 (Dec. 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. Bldg. Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984).

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In the instant case, the Commission finds that the Agency fulfilled the provisions of the
settlement agreement at issue. Specifically, the agreement required the Agency to cancel
Complainant’s termination and process it as a resignation. The record reveals that the Agency
created two SF-50s for Complainant’s personnel file cancelling the termination and processing
the resignation by January 24, 2012. Thus, the record shows that the Agency complied with
the plain language of the settlement agreement. The Commission finds that the settlement
agreement did not require the Agency to take efforts to correct the records of OWCP.
Nonetheless, the Agency did so by providing OWCP copies of the termination cancellation and
resignation SF-50s in August 2012. Accordingly, the Commission AFFIRMS the Agency's
final determination finding no breach of the settlement agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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).

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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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 5, 2015
Date