U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jonelle R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152419 Agency No. 200I05082013100537 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 20, 2015, 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 During the period at issue, Complainant worked as a Medical Lab Technician at the Agency's Medical Center in Decatur, Georgia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 9, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement contained, in pertinent part, the following provision: Provision 1(a): To a lateral transfer of Complainant, as a Medical Lab Technician, to a new Lawrenceville Community Based Outpatient Clinics (CBOC) at 1970 Riverside Parkway, Lawrenceville, Georgia, 30044, when the expansion project is completed. By letter to the Agency dated April 22, 2015, Complainant alleged breach and requested that the Agency specifically implement its terms by transferring her to the new facility. Complainant contends that the Agency breached the settlement agreement when it did not transfer her to the new Lawrenceville CBOC when it opened. In its May 20, 2015 letter of determination, the Agency found no breach. The Agency stated that upon receipt of Complainant's April 22, 2015 letter claiming breach, it contacted the Agency's EEO Program Manager. On April 30, 2015, the EEO Program Manager responded via email that Complainant had not been transferred because the expansion project had not been completed. The Agency further stated that while parts of the Lawrenceville CBOC may indeed be functioning, it still does not have a laboratory. The Agency noted that it is still in the planning phase and cannot provide a definitive date on the opening of the laboratory at the Lawrenceville CBOC. The Agency stated that Complainant's transfer was contingent on the completion of the laboratory portion of the expansion project. The instant appeal followed. On appeal, Complainant contends that the Agency "negotiate[d] in bad faith for withholding substantive conditions that would had produced a consequential[ly], different outcome for [Complainant]." Complainant contends that had the Agency "disclosed the terms of the stipulation during the negotiations, the [Complainant] would ha[ve] woefully rejected the Agency's offer." Complainant contends that the Agency should have provided her and her attorney with information regarding the construction phases of the Lawrenceville CBOC. Complainant further contends that there should be no delay in transferring her because she does not necessarily need a laboratory to function in her role. 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). The Agency has established that it is in substantial compliance with the terms of the settlement agreement. Here, the Agency has provided documentation that the expansion project at the Lawrenceville CBOC was not yet completed at the time of its final decision. The documentation stated that the "Lawrencville CBOC does not yet have a Laboratory." The Agency stated that, "[t]hey are still in the planning phase and cannot provide a definitive date on [the] opening [of] the lab in Lawrencville." Additionally, there was nothing in the settlement agreement to state that the Agency would transfer Complainant when the facility itself opened. The settlement agreement specifically states that the Agency would transfer Complainant as a Medical Lab Technician when the expansion project was completed. Complainant may have a viable breach claim if an extensive time period had elapsed between the time of the execution of the instant agreement and the time Complainant alleged breach. We note, however, that in this particular instance, the subject agreement was executed on February 9, 2015, and the breach claim was filed scarcely two months later, in April 2015, and the Agency has persuasively demonstrated its inability to be in compliance within that short time frame for the reason discussed above. CONCLUSION After a review of the record in its entirety, we find that the Agency's finding of no breach is AFFIRMED. 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), 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, 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 (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 November 12, 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 0120152419 2 0120152419