0120172878
01-31-2018
Lakia L,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lakia L,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120172878
Agency No. DLAF120225
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a Final Determination by the Agency dated July 31, 2017, 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 in an unspecified position at an unspecified Agency facility in Houston, Texas. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 1, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1a) The Agency agrees to respond appropriately with respect to Complainant's allegations against [Responsible Management Official 1 (RMO1)] and [Responsible Management Official 2 (RMO2)] that they engaged in harassing conduct toward Complainant and created a hostile work environment;
(1b) The Agency agrees to seat Complainant in a physical work location in the building that creates an environment where Complainant can work free from harassment.
(1d) The Agency agrees to appropriately and promptly respond to any substantiated reports of disparaging remarks made against Complainant in the workplace.
By letter to the Agency dated June 23, 2017, Complainant alleged that the Agency was in breach of the settlement agreement (Agreement), and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency breached term 1a of the Agreement when it allowed another employee (E) to come into her work area. With regard to 1b, Complainant alleged that the Agreement was breached when E continued to enter her work area even after he was informed not to by management and that E "continued to come upstairs for no other reason than to laugh and joke with his friends about how he missed not seeing [RMO1] up here, whom [she] had previously filed a sexual harassment complaint [sic]." Finally, with regard to term 1d, Complainant alleged breach when, at a May 22, 2017 meeting with another management official (MO), she was verbally abused and insulted and E "was sitting there watching the verbal abuse."
In its July 31, 2017 FAD, the Agency concluded it had not breached the Agreement, noting that E was not mentioned in the Agreement "and therefore his actions do not support [Complainant's] breach claim." Furthermore, with regard to term 1d, the Agency noted that the Agreement only required the Agency to respond to reports of disparaging remarks made against Complainant and that Complainant had not reported the actions of May 22, 2017 to management, so any failure by management to respond did not constitute a breach.
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).
In the instant case we find the three terms to be void for lack of consideration. Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992). The Agreement notwithstanding, the Agency has an ongoing duty to respond appropriately to complaints of harassment and a hostile work environment, provide employees with a harassment-free workplace, and respond appropriately and promptly to any substantiated reports of disparaging remarks made against employees in the workplace. Indeed we note that the Agency's Final Determination did find that term 1b lacked consideration, but went no further in this regard, and no such findings were made with regard to the other two terms. Because Complainant gained nothing more than that to which she was already entitled absent the Agreement, Complainant received no consideration with regard to terms 1a, 1b, and 1d. However, since consideration was exchanged through other portions of the Agreement, we do not find that the entire Agreement is invalid.
Complainant's allegations, however, indicate that she may have been subjected to harassment. If Complainant wishes to file a new claim of harassment alleging the incidents raised in her breach claim, she should contact an EEO Counselor. For purposes of timeliness, her June 23, 2017 notice of breach shall constitute the date of EEO Counselor Contact.
CONCLUSION
The Agency's Final Determination 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. 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. 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
January 31, 2018
__________________
Date
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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