Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 0120142820 Agency No. NCN-13-JSC-00059 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 17, 2014, 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 was both an employee and an Applicant for an academic fellowship at the Agency's Headquarters, in Washington, DC. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process when she was denied a fellowship in 2013. On September 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2a) "On or before September 30th, [the named official] shall secure a letter from the Human Resources Department regarding the results of the fellowship application process for which fellowship the Aggrieved Individual applied in Spring of 2013. This letter shall be emailed to the Aggrieved Individual, and shall include the total budget for such fellowships, as well as the highest, lowest, and average amounts awarded. [The named official] shall request that the Human Resources Department make this emailed letter to fellowship applicants regarding the results of the fellowship application process be made part of the normal process involved in the application for, and awarding of, fellowships from the date of this Agreement forward." (2b) As part of the mentoring relationship set forth in Paragraph 2 hereinabove, the Aggrieved Individual and [named official] shall work together and with the Office of Equal Opportunity and Diversity to locate a suitable and mutually agreed upon course covering conflict resolution skills and techniques, towards the strategic goal of enhancing and further developing the Aggrieved Individual's leadership capacity. (2c) The aggrieved Individual shall avail herself of the One-on-One Conflict Resolution Coaching / Consulting program that is available through the Office of Equal Opportunity and Diversity, by notifying such office of her desire to do so, within three days of the date of this Agreement (7) This Agreement represents and expresses the entire agreement between the Agency and the Aggrieved Individual resolving the above-cited complaint(s) and fully supersedes any and all prior agreements or understandings between the parties pertaining to the subject matter hereof. If other promises, oral or written, have been made, they are not binding. This document cannot be altered, modified, withdrawn, rescinded, or supplemented in any manner after the date on which it becomes effective unless mutually agreed in writing by all parties. The record shows that the NASA Settlement Official signed the Agreement on September 10, 2013. On September 13, 2013, and prior to Complainant's signing, Complainant communicated to the Agency that she wanted paragraphs 2b and 2c deleted. Complainant signed the Agreement on September 26, 2013. She states that she crossed out the provisions on the copy she signed. The final (Agency's) copy of the signed Agreement included the provisions which Complainant requested be stricken. Complainant submitted an application for the 2014 Fellowship. Complainant did not receive an email and was not notified directly of her non-selection or the process. The Agency maintains that it provided notice only to management officials. The Agency maintains that, "according to Agency records, the information was indeed provided to Complainant and the other non-selected applicants through communication with your immediate supervisors." By letter to the Agency dated April 29, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate her complaint. Specifically, Complainant alleged that: 1) the Agency failed to strike the requested provisions, and 2) Complainant states that she did not receive any direct notice "following the Fellowship Awards this year." Consequently, she claims that the Agency failed to provide notice to her, or other fellowship applicants regarding the results of the fellowship application process as a part of the normal process involved in the application for, and awarding of, fellowships from the date of the Agreement forward, as required in Paragraph 2a. The Agency concluded that it complied with the Agreement. The Agency stated that Complainant is bound by the terms of Agreement which she voluntarily signed on September 26, 2013. The Agency stated that there is no breach, because the Agreement did not "allude to the removal of this phrase." The Agency reasoned that Complainant "may not recount conversations that took place prior to the signing of the agreement and assert that those discussions constitute the basis for [Complainant's] claim of breach." Next, the Agency found that it complied with the requirement for notice, because it provided the information through communication with Complainant's immediate supervisors. The Agency states that "HR met with [Complainant] in person to advise [Complainant] that [she] did not receive funding for the FY 2014 NASA Fellowship Program." This appeal followed. 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). On appeal, the Agency argues that there is nothing in the plain language of the Agreement that required it to delete the two paragraphs that Complainant requested be deleted. Complainant, on the other hand, asserts that she signed with her clear understanding that the deletions were acceptable to both parties. As already noted, the Commission usually relies only on the plain language contained in the four corners of an agreement to determine its meaning. We find that the Agreement was valid and binding on both parties. In the instant case, we find that the Agency has not met its burden of showing that it complied with the terms of the Agreement, Paragraph 2a. The Agency concedes that it did not email the information directly to the Complainant, as specified in the Agreement. The Agency provided no evidence that it complied with the Agreement's requirements that management made the notice a part of the normal process involved in the application and award of fellowships from the date of the Agreement forward. It is not dispositive that the Agency provided notice through management. The Agreement was specific in requiring direct notice to Complainant. There is no evidence that the Agency complied with that provision. For these reasons, we find that the record supports Complainant's assertion that the Agency breached the Agreement. Complainant's underlying EEO complaint should be reinstated as a result of its inability to prove compliance with the Agreement. Where this Commission finds that a settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. Complainant seeks the reinstatement of her complaint. In this case, there were no monetary awards and therefore no requirement to return any money prior to the reinstatement of her complaint. Finally, we note that, on appeal, Complainant indicates that she was not selected for the 2014 fellowships. This occurred after the signing of the agreement at issue. Complainant is advised that if she wishes to pursue, through the EEO process, any additional discrimination or reprisal claims she raised for the first time on appeal, she should initiate contact with an EEO Counselor within 15 days after she receives this decision. CONCLUSION Based on our review of the record and the statements and contentions on appeal, we find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's final decision and REMAND the matter for action in accordance with the ORDER below. ORDER The Agency is ordered to reinstate EEO complaint NCN-13-JSC-00059 and process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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. 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 tends 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), 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). 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 (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, Director Office of Federal Operations January 13, 2015 __________________ Date 2 0120142820 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142820