Retha W.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 24, 2017

0120151000 (E.E.O.C. Mar. 24, 2017)

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

Retha W.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120151000

Agency No. NRCS-2012-00922

DECISION

Complainant filed an appeal with this Commission from a final decision by the Agency dated
November 8, 2013, finding that it was in compliance with the terms of the settlement
agreement into which the parties entered. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no breach of a settlement agreement.

BACKGROUND

On November 8, 2013, Complainant and the Agency entered into a settlement agreement to
resolve Agency Complaint Nos. NRCS-2009-00261, NRCS-2012-00922; and NRCS-2011-
00574. The settlement agreement provided, in pertinent part, that:

Section I. The Agency agrees to:

(A) To pay the Complainant the lump sum of $8,000 (Eight Thousand
Dollars) and process this payment to the National Finance Center (NFC)
within 45 days of the execution of this Agreement.

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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Section II. The Complainant Agrees to:

(A) Withdraw her EEO (Formal) Complaints identified as Agency Case
NRCSL-2009-00261; NRCS-2012-00922; NRCS-2011-00574 and any
other formal or informal grievances, appeals, civil actions or complaints
with the EEOC, Office of Special Counsel, Federal Labor Relations
Authority, Merit Systems Protection Board, General Accounting Office
or any other federal agency, administrative tribunal or court concerning
matters arising out of or relating to Complainant’s employment with the
Agency. Complainant shall submit a withdrawal letter to EEOC/OFO
withdrawing her appeal in Agency Case NRCS-200-00261.

Section III. Both Parties Agree:

(D) This Agreement constitutes the full, entire, and complete agreement
between the settling parties with respect to the complaints, grievances,
and related matter described above. The terms of this Agreement are
contractual and are not a mere recital. No modification or waiver of any
of the terms of this Agreement shall be valid unless made in writing, and
signed by the settling parties.

By letters to the Agency dated July 9 and 16, 2014, Complainant alleged that the Agency was
in breach of the settlement agreement. Specifically, Complainant alleged that the Agency
failed to fulfill its obligations regarding a “Gentlemen’s Agreement” that was communicated
with the involved parties, including Complainant, her representative, the Agency’s resolving
official, and the state conservationist at the time the Settlement Agreement was signed.
Complainant claimed that according to the “Gentlemen’s Agreement,” the Agency promised to
announce a GS-12 level outreach position in Alabama, for which Complainant would be given
consideration and listed on the hiring certificate. According to Complainant and her
representative, the Agency failed to advertise such a vacancy.

In its November 8, 2013 decision, the Agency concluded neither the terms of the settlement
agreement or the EEO regulations permit enforcement of terms that do not appear in the
settlement agreement. The Agency stated that the agreement is plain and unambiguous on its
face when it states that it is a full, entire, and complete agreement. The Agency noted in the
settlement agreement, Complainant waived her claims arising out of her EEO complaints and
other claims of employment discrimination against the Agency. The Agency acknowledged, in
exchange, it agreed to pay Complainant a lump sum of $8,000. The Agency confirmed it made
the payment and noted Complainant did not contest receipt of the payment. Thus, the Agency
stated it complied with all applicable terms in the agreement.

On appeal, Complainant argues the Agency’s Representative engaged in an abuse of authority
and alleges non-compliance with the “Gentlemen’s Agreement.” Complainant provides
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electronic mail messages from her representative in support of her claim that a “Gentlemen’s
Agreement” existed between the parties.

In response to Complainant’s appeal, the Agency reiterates that it never entered into any
supplemental covenant for any term which was not incorporated into the settlement agreement.
The Agency states while the Agency’s Resolving Official mentioned during settlement
agreement negotiations that a particular position may be available at some point in the future,
the Agency claims it made no promise to hire Complainant or made any offer of special
consideration. Further, the Agency states it made no guarantee or gave any assurances that a
specific position would be advertised.

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 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).

Upon review, we find Complainant has not shown that the Agency failed to fulfill a
“Gentlemen’s Agreement” that it would announce a GS-12 level outreach position in Alabama,
for which Complainant would be given consideration and listed on the hiring certificate.
Specifically, we note that such terms were never reduced to writing and were not made part of
the settlement agreement. Under the terms of the settlement agreement itself, and in keeping
with the established contract law, only those terms which have been reduced to writing as part
of the settlement agreement are enforceable. See, e.g., Complainant v. Dep’t of Def., EEOC
Request No. 05960032 (December 9, 1996). Despite Complainant’s vague assertion, we find
no evidence that the Agency’s representative acted in bad faith or abused his authority during
settlement negotiations.

With regard to the electronic mail messages supplied by Complainant on appeal, we note those
messages are from Complainant’s representative to the Agency inquiring on the status of the
“Gentlemen’s Agreement.” Complainant also provided text messages from her representative
to Complainant stating that he is “confident things are going to go as planned” and that he
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“still feel[s] the agreement will be upheld.” However, these submissions do not constitute
evidence demonstrating that the alleged verbal terms were agreed to by the parties. If
Complainant had intended for those terms to be part of the agreement, she should have
requested that language to that effect be included in the agreement. Thus, we find that the
Agency is not in breach of the settlement agreement. We note that on appeal Complainant
does not contest that she received the lump sum payment specified in the agreement.

CONCLUSION

Accordingly, the Agency’s final decision that it did not breach the settlement agreement is
AFFIRMED.

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
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 (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

March 24, 2017
Date