Wes S.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 20, 2020

2020001123 (E.E.O.C. Aug. 20, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wes S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020001123 Agency No. ARBRAGG14SEP03257 DECISION On October 23, 2019, Complainant filed an appeal with this Commission regarding the alleged breach of a settlement agreement. The Agency argues that Complainant's appeal is premature because the Agency was not properly notified2 of the allegation of breach and it has not issued a final decision on the matter. Nonetheless, the Agency contends it is in compliance with the settlement and provides a brief in opposition to the claim of breach. Therefore, in the interest of judicial economy and expediency, we will view the Agency's response as its decision and accept the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Health Systems Specialist at the Agency’s Womack Army Medical Center in Fort Bragg, North Carolina. Believing that the Agency subjected him to unlawful discrimination based on his disability, Complainant filed a formal EEO complaint on October 6, 2014. 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. 2 The record shows that the Legal Assistant to Complainant’s attorney emailed Agency counsel on September 27, 2019, inquiring about the status of the payments. A follow-up email was sent on October 4, 2019, noting that Complainant would next raise his concerns with the Commission. 2020001123 2 While the matter was pending before an EEOC Administrative Judge, the parties executed a settlement agreement to resolve the matter. The May 28, 2019 settlement agreement provided, in pertinent part, that: 3. The Agency agrees to: (a) Within sixty (60) calendar days after this agreement is fully executed, Womack Army Medical Center will submit all necessary documentation to Defense Finance and Accounting Service (DFAS) required to pay Complainant a lump sum of forty-five thousand dollars ($45,000.00) in non- wage related lump sum damages. Complainant understands that payment is subject to processing by DFAS, an agency separate from Womack Army Medical Center, Fort Bragg of the Department of the Army. This lump sum shall, along with the other promises contained within paragraph 3, be in full settlement and satisfaction of any and all claims, demands, rights, administrative claims, and causes of action arising from or related to the claims that are the subject of this agreement. Without guaranteeing when such payment will be effected by DFAS, the Army agrees to exercise due diligence in arranging for the payment to be processed. Complainant acknowledges that he will be responsible for any taxes owed as a result and guarantees he will act with due diligence in responding to anything needed from him to effect such payments. (b) The Agency further agrees to pay Complainant’s Attorney reasonable attorney’s fees in the amount of fifteen thousand dollars ($15,000). After the passage of sixty days, on September 27, 2019, Complainant’s attorney contacted Agency counsel regarding the status of the payments owing to both Complainant and himself. The record contains no response from the Agency. Approximately one week later, an additional email was sent before filing with the Commission. There is no indication that the Agency replied to the inquiry. On October 23, 2019, Complainant filed the instant appeal. He contends that the Agency has not paid him ($45,000), or his attorney ($15,000), as required by the settlement. Complainant contends he has been “more than patient” and requests that the Commission order specific performance from the Agency. 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. 2020001123 3 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 its December 3, 2019 response to the allegation of breach, the Agency contends that payment has been made. Specifically, the Agency explained that sums of such large amounts required approval by Region Command and “higher headquarters approval” before paperwork could be submitted to DFAS, causing some delay. According to the Agency, DFAS made “payment posting” on October 31, 2019 and payment occurred on November 20, 2019. A review of the documents submitted by the Agency, however, do not establish payment was received by Complainant. In a November 12, 2019 email from an Agency Budget Analyst, accompanied by a document screenshot of an “invoice receipt date of October 31, 2019,” the analyst explains to an Agency official that DFAS has “submitted a ticket to have the payments released.” The remaining attachments, including a “Voucher” and “Funds Commitment,” show that Complainant’s attorney was paid $15,000.00. The only evidence that Complainant was paid $45,000.00 is a December 3, 2019 email from a legal assistant for Complainant’s attorney stating: “ . . . yes Sir, Mr. Stevens confirmed he received his payment as well.” The lone email is inadequate evidence to establish that the breach was cured. Consequently, the matter is remanded to the Agency for a supplemental investigation. The Agency must provide clear documentation establishing when payment, in the amount of $45,000, was made and received by Complainant. CONCLUSION The Agency’s determination, that it was in compliance with the settlement agreement, is AFFIRMED with respect to provision 3.(b) and REVERSED regarding provision 3.(a). The matter is REMANDED to the Agency in accordance with this decision and the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation regarding compliance with provision 3.(a) of the May 28, 2019 settlement agreement. Specifically, the Agency shall provide documentation of payment to Complainant, in the amount of $45,000.00. Sufficient documentation may include, but is not limited to, a copy of: a check, direct deposit, or voucher reflecting Complainant’s name, the date and the amount of payment. 2020001123 4 The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2020001123 5 (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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2020001123 6 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 August 20, 2020 Date