U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Branda M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152563 Agency Nos. 20DR-X002-2014102779 & 20DR-X002-2015100942 DECISION On August 13, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated July 13, 2015, finding that it did not enter into a settlement agreement with Complainant, and hence there was no breach. 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 one or both her complaints, Complainant worked as an Attorney at the Agency's Office of General Counsel in Washington, D.C. Complainant filed a formal complaint, as amended (20DR-X002-2014102779 - Complaint 1), and a then a second formal complaint (20DR-X002-2015100942 - Complaint 2). In response to proposed settlement terms by Complainant, the Agency equal employment opportunity (EEO) attorney-advisor, by email to Complainant's attorney on May 18, 2015, made a counter-offer to resolve complaints 1 and 2, writing that she would be happy to draft a settlement agreement if they could come to terms. Within 20 minutes, Complainant's attorney responded by email that Complainant accepted the counter-offer. By email on May 19, 2015, to Complainant's attorney, the Agency EEO attorney-advisor attached a settlement agreement with unexecuted signature lines for Complainant, her representative; and the Agency - specifically "Authorized Agency Official's Name" and "Counsel for the Agency." The Agency EEO attorney-advisor inquired if there were any edits Complainant's attorney would like to make, and explained that because she would be on annual leave from May 22, 2015 through May 27, 2015, if she could not get the settlement agreement fully executed by close of business the next day, completing execution thereof would have to wait until May 28, 2015. The terms of the attached settlement agreement with unexecuted signature lines was consistent with the accepted counter-offer. The unexecuted settlement agreement provided, in pertinent part: 1. Complainant's Withdrawal and Waiver: a. ...Complainant hereby voluntarily withdraws any and all pending informal and formal complaints ...and all other claims arising under any federal ...law against the Agency ...including but not limited to, [Complaints 1 and 2].... 2. Agency Obligation(s): ... a. Within 60 calendar days ...make a lump sum payment to the Complainant in the amount of ...$169.51. b. Within 60 calendar days ...pay ...$8,200 in attorney fees.... By reply email on May 20, 2015, Complainant's law firm delivered the settlement agreement with handwritten signatures of herself and Complainant. About 20 minutes later, the Agency EEO attorney-advisor responded that the settlement agreement had to go through a higher level of Agency review. On June 4, 2015, Complainant's attorney, writing that Complainant received the EEO investigator's request for an affidavit on Complainant's second claim, sent an email to the Agency EEO attorney-advisor asking about the status of the settlement agreement. By email on June 9, 2015, the Agency EEO attorney-advisor replied that Office of General Counsel management, after further consideration, decided not to settle Complainant's cases, and it would advise the Office of Resolution Management to resume the investigation on the second complaint. On July 9, 2015, Complainant filed a notice of breach claim with the Agency. In its FAD, the Agency represented that Complaint 1 was pending a hearing, and Complaint 2 was pending completion of an EEO investigation, and neither were withdrawn. It found that there was no binding settlement agreement between the parties because the proposed settlement agreement was not signed by the Agency, nor had any exceptions to an oral settlement agreement being binding been met. Accordingly, the Agency found no breach. On appeal, Complainant, through her attorney, argues that the parties email exchanges constituted an Agency signature, and hence the settlement agreement was signed by the parties. In support thereof, Complainant cites to the Commission's newly issued Equal Employment Opportunity Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-12 to 9-13 (August 5, 2015) which provides: It is the Commission's policy to support, encourage, and in the case of agency submissions on appeal, mandate the use of digital documents in lieu of paper for documentation sent to the Commission specifically under the authority of 29 C.F.R. § 1614.403(g). A digital document used by a person, agency, or other entity shall have the same force and effect as those documents not produced by electronic means. In support of the policy, the Commission considers electronic signatures on such submissions as having the same force and effect as signatures and records produced by hand or other non-electronic means. "Electronic signature" means any digital symbol, sound, or process attached to or logically associated with a digital record and executed or adopted by a person with the intent to sign the record. The Commission will accept an array of digital objects to serve as an electronic signature. These objects can range from keyboarded characters (for example, "/s/Jane Doe"), a graphical image of a handwritten signature, or an authenticated process that creates an electronic signature. An electronic signature is considered attached to or logically associated with a digital record if the electronic signature is linked to the record during transmission and storage. Complainant also cites the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 - 7034, and a federal district court decision applying the Act for the proposition that an email string can constitute a signing of a document electronically. Complainant argues that under the Act, an electronic signature means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record or executed or adopted by a person with the intent to sign the record. Complainant argues that the email string in the case before us constituted an electronic signature. 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. Further, any settlement agreement reached shall be in writing and signed by both parties. 29 C.F.R. § 1614.603. The portion of the EEO MD-110 cited by Complainant appears in a chapter about appeals to the Commission. We need not decide in this case whether the cited portion of the EEO MD-110, and the cited statute and case, apply to settlement agreements reached in the EEO administrative process, or whether an email string can constitute an electronic signature. Regardless, Complainant has not shown that the Agency signed the settlement agreement. The record does not show that the Agency made an electronic signature with the intent to sign the record. When on May 19, 2015, the Agency EEO attorney-advisor emailed the unexecuted draft settlement to Complainant's attorney with signature lines for the parties, she explained that because she would be on annual leave from May 22, 2015 through May 27, 2015, if she could not get the settlement agreement fully executed by close of business the next day, completing execution thereof would have to wait until May 28, 2015. This explanation shows the she did not intend the email to constitute an electronic signature. By reply email the next day, Complainant's law firm returned the draft settlement agreement with handwritten signatures by Complainant and her attorney. The Agency EEO attorney-advisor immediately responded that the settlement agreement had to go through higher levels of Agency review, and in no way thereafter indicated that it had been approved or signed off by the Agency. Because the draft settlement agreement was not signed by both parties, there is no binding settlement agreement. 29 C.F.R. § 1614.603. Accordingly, the FAD 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), 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 January 12, 2016 __________________ 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 0120152563 2 0120152563