Karol K,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120170373 (E.E.O.C. Feb. 23, 2017)

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

Karol K,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120170373

Agency No. 200I05342016103076

DECISION

Complainant filed an appeal with this Commission from a final decision (FAD) by the Agency
dated September 30, 2016, finding that it was in compliance with the terms of the settlement
agreement into which the parties entered. We find that the Agency properly found no breach
of the settlement agreement.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Program Specialist at the Agency’s facility in Charleston, South Carolina. On June 29, 2016,
Complainant and the Agency entered into a settlement agreement to resolve EEO claims she
had raised. The settlement agreement provided, in pertinent part, that:

2(b) Within 30 days of all Parties signing this agreement, the Agency will cancel
[Complainant’s] termination from federal service effective April 17, 2016 and
remove the SF 50 from her eOPF indicating that she was terminated from her
position effective April 17, 2016. The Agency will place an SF 50 in
[Complainant’s] eOPF indicating that she resigned from her position effective
April 17, 2016.

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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By letter to the Agency dated August 22, 2016, 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 remove the SF 50 indicating
termination and replace it with an SF 50 indicating resignation within the 30-day time period
established in the agreement. Complainant also requested back-pay from April 17, 2016,
stating that she had been financially burdened as she was allegedly unable to move forward
with new employment opportunities as a result of the alleged breach. The record shows that on
July 7, 2016, the Agency prepared an SF 52 showing the nature of resignation and provided it
to Complainant so that she could apply for a new position while she waited for her eOPF to be
updated from termination to resignation status. On September 1, 2016, the Agency completed
its tasks as required by the settlement agreement, explaining that the delay was caused by
issues in the system used to make changes in the eOPF.

In its September 30, 2016 FAD, the Agency concluded that it was in compliance with the
settlement agreement because the Agency made the necessary changes in a reasonable amount
of time. Complainant submitted no additional arguments or evidence on appeal challenging the
Agency decision finding no breach of the settlement agreement.

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 Complainant 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. Complainant 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
Complainant 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).

The Commission has found that an agency must act in good faith to comply with the terms of a
settlement agreement within a reasonable period of time in order to avoid breaching the
agreement. Complainant v. Dep’t of the Air Force, EEOC Appeal No. 01941807 (June 9,
1994). In situations where an agency has completed all tasks required by a settlement
agreement, though not within the time frame specified in the agreement, and the delay has not
harmed the complainant, the Commission has found that the agency substantially complied with
the terms of the agreement and has declined to find a breach. See Complainant v. Dep’t of the
Interior, EEOC Appeal No. 01954274 (1996).
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In the instant case, we find that although the Agency was unable to complete the necessary
tasks required by the settlement agreement within the time frame defined by the agreement, the
Agency acted in good faith to complete the tasks and made the necessary changes within a
reasonable period of time given the technological issues that delayed the process. Additionally,
the Agency prepared a document reflecting Complainant’s resignation status that she could use
to find new employment in the period of time before the Agency was able to update
Complainant’s eOPF. Complainant has not provided any evidence that the delay was in bad
faith. We find, therefore, that the Agency substantially complied with the terms of the
settlement agreement.

CONCLUSION

Accordingly, we AFFIRM the Agency’s decision finding no breach of the settlement
agreement.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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
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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. 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 23, 2017
Date