U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thomasina K.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120143051 Agency No. 2003-0735-2012102369 DECISION Complainant filed an appeal with this Commission from an Agency decision, dated August 1, 2014, finding that it was in compliance with the terms of a June 22, 2012 settlement agreement. The Commission accepts 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 at the Agency's Central Plains Consolidated Patient Account Center (CPAC) in Leavenworth, Kansas. On June 22, 2012, Complainant and the Agency entered into a settlement agreement in resolution of a matter which had been pursued through the EEO Complaint process. The June 22, 2012 settlement agreement provided, in pertinent part, that: (2) The Agency shall: (a) Approve EAP appointments for the aggrieved, 3 hours; once weekly for one year; unauthorized absences granted as requested. (b) Step increase to GS-11, Step 8 with $10,000 compensation to be completed within 35 days of the signed agreement. (c) Communication Meetings will be conducted between Complainant and the [Chief Operating Officer] once each month, first week, for duration of three months. To begin, first week of month following signed agreement. On August 10, 2012, Complainant alleged breach of the settlement agreement. In a final decision dated October 23, 2012, the Agency determined that the settlement agreement was void. Specifically, the Agency found that the Agency Official who had conducted the mediation did not have authority to settle the underlying matter. Further, the Agency indicated that Complainant was aware that the settlement agreement was merely a draft, which still required final Agency management approval. The Agency determined that because the "draft" was not approved by Agency management, neither party was bound by the settlement agreement's terms. Accordingly, the Agency found that it would reinstate Complainant's underlying complaint with previously requested amendments, and that Complainant's appeal had been rendered moot. In EEOC Appeal No. 0120123492 (May 24, 2013), we determined that Complainant had made it clear that she sought specific performance of the June 22, 2012 settlement agreement, and had not sought reinstatement of the underlying complaint. We therefore determined that "the issue to be resolved in this appeal is whether or not a valid settlement agreement existed and, if so, did the Agency breach its terms." Our previous decision found that the record contained a copy of the settlement agreement, "which indicates on its face that it became effective on the date signed (June 22, 2012)..." We concluded that there was a valid agreement and that, by its own admission, the Agency had failed to comply with its terms. The Agency's October 23, 2012 final decision was reversed, and the matter remanded to the Agency for full compliance with the terms of the settlement agreement. Thereafter, the Agency submitted a report of compliance with the order in EEOC Appeal No. 0120123492. According to Commission records, in February 2014, the Agency was found to have completed the actions ordered. However, on June 17, 2014, Complainant alleged that the Agency breached provision (2)(b) when it issued her a debt letter stating she had been erroneously paid at GS-11, Step 8, since July 15, 2012, when she should have been paid at GS-9, Step 8, rate. According to the letter, the Agency was seeking to recover the overpayment resulting from its "administrative error". In its August 1, 2014 decision, the Agency dismissed the allegation of breach as untimely filed. The Agency reasoned that Complainant was demoted on July 13, 2012, but waited until the June 2014 debt letter, approximately one year after the Commission's prior decision and months after an Agency decision regarding the demotion itself, to allege breach. Alternatively, assuming arguendo that the breach claim was timely, the Agency found no breach of the agreement. According to the Agency, "subsequent to the execution of the settlement agreement, [Complainant] failed to meet the requirements of [her] supervisory probationary period and was demoted from [her] GS-11 position to a GS-9 position, effective July 15, 2012." Since the breach was due to Complainant's conduct (i.e. her failure to meet the job requirements), the Agency concluded that it was not liable. The decision notes that at the time of the demotion, the validity of the agreement was in dispute. Thereafter, when the Commission upheld the agreement, the Agency contends "in complying with the terms of the settlement agreement and [Complainant's] subsequent demotion, [it] should have retroactively promoted [Complainant] to a GS-11 Step 8 for the period of June 22, 2012 - July 15, 2012, the date of demotion." Instead, because of an administrative error, "which was a result of the Agency complying with the OFO breach order", the Agency promoted Complainant to GS-11, Step 8, and continued to pay her at that rate even though she was assigned and performing GS-9 work, as a Financial Management Specialist. The Agency stated that the debt letter was issued to correct the error and recover the overpayment. Complainant filed the instant appeal. 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, Complainant argues that her allegation of breach is timely because "the first indication of a breach" did not occur until she was contacted on June 17, 2014, regarding the administrative error. Complainant disputes the Agency's assertion that any breach was the result of her conduct. Instead, Complainant argues that the Agency "never intended to comply fully with the terms of the settlement agreement" and that it created the administrative error with "malice and intent." Complainant notes that merely three weeks after entering the settlement she was demoted without any prior counseling. With respect to the timeliness of Complainant's allegation of breach, we agree with Complainant. It was not until she was in receipt of the debt letter, in June 2014, that Complainant suspected any breach of provision 2(b). In turning to the allegation of breach, we shall first examine the timing of events surrounding the settlement agreement. On June 22, 2012, the parties executed the settlement agreement, though the Agency soon disputed the validity of the agreement. As noted above, Complainant agreed to withdraw her EEO complaint in exchange for an increase to GS-11, Step 8.2 Less than one month later, on July 13, 2012, Complainant was notified that she failed to satisfactorily complete the supervisory probationary period. Consequently, she was demoted from her Supervisory Program Specialist position to that of Financial Management Specialist, GS-9, Step 8. Even after the settlement agreement was found to be valid, and the Agency ordered to specifically perform, Complainant had to seek the assistance of an EEOC Compliance Officer in to obtain compliance. Commission records indicate that in September 2013, Complainant asserted that the Agency had not taken the actions ordered. In correspondence dated December 5, 2013, the Agency acknowledged that it was late in submitting a compliance report, but proffered a notification of personnel action, effective July 15, 2012, confirming that Complainant was given an increase to GS-11, 8. However, in the same letter, the Agency's General Counsel also noted that Complainant "claims that she 'is still working in the position of Financial Specialist, GS-9.' However, she does not explain this claim and the Agency does not understand why she makes this claim." We find that the instant record reflects bad faith on the part of the Agency. The Agency entered into a settlement agreement with Complainant on June 22, 2012, but immediately after, tried to argue that no agreement was reached. Only three weeks after the agreement was signed raising Complainant to a GS-11, step 8, the Agency demoted Complainant to a GS-9. This action was implemented even while the validity of the agreement was pending before the Commission. Following the Commission's determination that the agreement was valid and order to the Agency to specifically perform, the Agency continued to delay. Soon after providing the Commission with evidence of the promotion to GS-11, Step 8, and closure of the compliance file, the Agency then attempted to undo its action by seeking to have Complainant return the funds paid out to her under the promotion. It appears that the Agency is trying to undo an agreement that the Commission has previously found to be valid, and skirt around our previous order. Moreover, we find several of the Agency's actions disconcerting. We note in particular, the Agency's decision to demote Complainant less than one month after executing the settlement agreement and its issuance of the debt letter following its late compliance with the Commission's previous order. The Agency is reminded that EEOC regulations prohibit reprisal for prior protected EEO activity. Further, adverse actions brought under the basis of reprisal need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. The Commission finds the Agency is in breach of provision (2)(b). The Agency erred in finding that Complainant's pay at the GS-11, Step 8 rate was an administrative error for which Complainant was required to repay. Such payment was in compliance with the terms of the settlement agreement and not an overpayment. CONCLUSION Accordingly, the Agency's decision finding no breach of the subject settlement agreement is REVERSED. This matter is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Within thirty (30) calendar days of the date this decision become final, the Agency shall take the steps necessary to correct the erroneous debt owed by Complainant for monies paid at the GS-11, Step 8 pay rate, in accordance with the settlement agreement entered by the parties. The Agency shall issue to Complainant documentation showing that no debt is owed and describing all necessary corrective actions taken. 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 (M0815) 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), 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, 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 (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 December 18, 2015 __________________ 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. 2 At the time of the agreement Complainant was a GS-11, Step 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120143051 2 0120143051