U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gia M.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120142132 Agency No. ARBRAGG12APR01569 DECISION Complainant filed a timely appeal with this Commission from a determination by the Agency dated April 21, 2014, that it was in compliance with the terms of the settlement agreement into which the parties had entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. For the reasons stated below, the Agency's determination is VACATED and that this matter is REMANDED for further action in accordance with this decision and the Order below. ISSUE PRESENTED The issue presented in this case is whether the parties' October 19, 2011, settlement agreement is unenforceable due to a lack of consideration. BACKGROUND Complainant worked as a Nursing Assistant at the Agency's Womack Army Medical Center in Fort Bragg, North Carolina. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. The record indicates that Complainant's allegations related to medical restrictions that prevented her from being able to perform as a Nursing Assistant, and her attempts to seek placement into a Medical Support Assistant position. Complainant argued that she sought to be placed in a medical support position in order to accommodate her medical restrictions. On October 19, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part: (1) The Agency agrees to initiate a search for a position within fourteen (14) business days upon receipt of documentation from Complainant's attending physician that Complainant is qualified for and able to perform the essential duties of, with or without accommodation, in accordance with the aforementioned documentation provided by her physician. If a position is vacant and funded, the Agency agrees to offer to place Complainant in the vacant position. The Agency agrees to act incompliance (sic) with Reasonable Accommodation procedures Section 6.2d. Complainant sought to overturn the settlement agreement in November 2011. The Commission, however, issued a decision on April 6, 2012, finding that the Agency did not breach the settlement agreement nor was there evidence that Complainant was coerced into entering the agreement. EEOC Appeal No. 0120120707 (Apr. 4, 2012). Complainant's subsequent request for reconsideration was denied. EEOC Request No. 0520120409 (Sept. 19, 2012). On May 30, 2012, Complainant filed a formal complaint (Docket Number ARBRAGG1I2APR01569) alleging that on April 16, 2012 and May 2, 2012, the Agency subjected her to a hostile work environment in reprisal for filing her prior EEO complaint when the Agency failed to act according to the terms of the October 19, 2011, settlement agreement. The Agency dismissed the complaint upon finding that it stated the same claim pending before or already decided by the Agency or EEOC. Complainant appealed that decision. The Commission subsequently determined that the matters raised in the complaint were not the same as those presented to the Commission and the Agency in EEOC Appeal No. 0120120707, because Complainant's earlier allegations concerned actions that allegedly took place in January 2012 and earlier. EEOC Appeal No. 0120123465 (Feb. 7, 2014). After reversing the Agency's dismissal, Complainant's claim that the settlement agreement was violated on May 2, 2012, was remanded to the Agency. Complainant alleged that the Agency failed to put her in the position of Medical Support Assistant, as she had seen many available positions but had been passed over several times. Specifically, she alleged that on May 2, 2012, she was subjected to reprisal and a hostile work environment when she was told that she had lost her chance at a position because she turned down a position that had been offered. Complainant maintained that she was never offered a position. In its April 21, 2014, determination, the Agency concluded that management complied with the terms of the negotiated settlement agreement. Specifically, management explained that the settlement agreement provided that it would initiate a search for a position within 14 business days upon receipt of documentation from Complainant's physician. Complainant did not submit medical documentation until December 19, 2011. Once the documentation was received, a search commenced for a position in which Complainant could work consistent with her medical limitations. The Agency offered Complainant the position of GS-0679-04 Medical Support Assistant in writing on January 9, 2012. Complainant refused to acknowledge receipt of the offer and did not accept the position. Management subsequently filled the position with another candidate. The Agency maintained that nothing in the settlement agreement required the Agency to hold a position open in case the Complainant changed her mind after refusing the offer, nor was it obligated under the terms of the settlement agreement to continue searching for and offering Complainant a position each time one became vacant until Complainant chose to accept it. The Agency moreover maintained that Complainant provided no specific allegation to indicate the nature of the alleged noncompliance on May 2, 2012. The Agency asserted, accordingly, that management was in full compliance with the terms of the settlement agreement and that no breach had occurred. CONTENTIONS ON APPEAL On appeal, the Agency maintains that the appeal should be denied because the Agency is in full compliance with the settlement agreement. The Agency argues that Complainant failed to provide the necessary medical documents for two months, after several attempts to make contact with Complainant, via mail and personal delivery. According to the Agency, the very day that the Agency received the documentation, December 19, 2011, it initiated a position search. A position was located and Complainant was notified in writing on January 9, 2012, but Complainant refused to accept, decline, or inquire further about the position. As such, the Agency asserts that it complied with all obligations imposed upon it by the settlement agreement. The Agency maintains that the refusal of the offered position extinguished any further obligation to place Complainant in a vacant position. 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 (Dec. 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 (Aug. 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 (Dec. 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). Pursuant to the settlement agreement, the Agency agreed that, in compliance with its reasonable accommodation procedures, after receiving medical documentation from Complainant's doctor it would initiate a search for a vacant, funded position for which Complainant was qualified, and would offer to place Complainant in said position. Complainant, in turn, agreed to withdraw her EEO complaint. The Commission's regulations provide that reassignment to a vacant funded position is a form of reasonable accommodation. This type of reasonable accommodation must be provided to otherwise qualified employees who, because of a disability, can no longer perform the essential functions of their current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship. Notwithstanding our previous decisions' treatment of the parties' settlement agreement, we find that the Agency, in merely agreeing to treat Complainant in accordance with existing statutes and regulations, provided Complainant nothing more than that to which she was already entitled as an employee. Accordingly, she received no consideration for her agreement to withdraw her complaint. The Agency has an ongoing responsibility to provide reasonable accommodation to individuals with disabilities. Thus, in the instant case, Complainant received no more than what she would otherwise be legally entitled for her promise to withdraw her EEO complaint. In Doudt v. U.S. Postal Service, EEOC Appeal No. 0120132245 (September 13, 2013), the Commission, citing Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955 (7th Cir. 1973), held: A valid contract must be based upon consideration where some right, interest, profit, or benefit accrues to one party or some forbearance, detriment, loss, or responsibility is given, suffered, or undertaken by the other. Where the promisor receives no benefit and the promisee suffers no detriment, the whole transaction is a nudum pactum [an unenforceable bare promise]. Based on the foregoing, we find that the settlement agreement is unenforceable. Therefore, in accordance with our regulations, the Agency should reinstate Complainant's informal complaint for further processing from the point processing ceased. In addition, Complainant should be allowed to amend her informal complaint to include the incidents mentioned in her hostile work environment claim, as well as any that have occurred since. CONCLUSION The Agency's determination that it did not breach the October 19, 2011, Settlement Agreement is VACATED. The settlement agreement is hereby set aside because it is unenforceable, and Complainant's informal complaint is REMANDED for processing in accordance with this decision and the Order below. ORDER The Agency is ordered to process the remanded informal complaint from the point at which processing ceased in accordance with regulations set forth at 29 C.F.R. Part 1614. The Agency shall acknowledge to Complainant that it has received the remanded informal complaint within thirty (30) calendar days of the date this decision becomes final. A copy of the Agency's letter of acknowledgment to Complainant must be sent to the Compliance Officer as referenced below. 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 (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). 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: ______________________________ Cdden's signature Carlton M. Hadden, Director Office of Federal Operations ___9/26/16_______________ 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 0120142132 2 0120142132