U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Britney B.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120161242 Agency No. 13DDHBAP0001 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 9, 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 At the time of events giving rise to this complaint, Complainant worked as an Associate Professor at the Agency's Daniel K. Inouye Asia Pacific Center for Security Studies facility in Oahu, Hawaii. On July 18, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that: (4)(a) The Director will sign a memo that specifically eliminates and removes the Performance Enhancement Plan (PEP) dated March 18, 2013 from the record and will not be referenced in any mode of communication. By letter to the Agency dated February 3, 2015, Complainant alleged that the Agency breached the Agreement and had not cured the breach. Specifically, Complainant alleged that the Agency failed to abide by paragraph 4(a) because the Agency had not expunged the Performance Enhancement Plan from the record. In addition, Complainant alleged that she had been harmed and renewed her request that her complaint be reinstated. On January 5, 2015, in response to one of Complainant's document requests in her First Request for Written Discovery [per EEOC Case No. 480-2014-00828X], the Agency produced a copy of the Performance Enhancement Plan. The document apparently had been maintained by the Agency in the "supervisor's file' in the office of Complainant's current first line supervisor. The document had been "communicated" by her former supervisor to her new and current supervisor. The current's supervisor was "a key player" in the Agency's denial of Complainant's request for promotion and the denial of her two requests for pay raise. The breach action was the subject of a prior appeal. In the Commission's decision, we reversed the Agency's finding of no breach. We found that the record was inconclusive as to whether the Agency cured the breach and remanded the matter to the Agency for a supplemental investigation to determine whether the Agency fully cured the breach. Complainant v. Department of the Navy, Asia-Pacific Center for Security Studies, APCSS, EEOC Appeal 0120151525 (October 8, 2015). Agency Decision The Agency determined that it was in compliance. The Agency noted that it conducted a supplemental investigation and provided documentation in the form affidavits, "to demonstrate the promotion process was not influenced by the circulation of the PEP." Based on the results of the supplemental investigation, the Agency concluded that it "has fully cured the breach and provided appropriate documentation in accordance with the EEOC OFO order." This appeal followed. On appeal, Complainant maintains that the Commission should grant Complainant's request to reinstate the complaint for "proper processing and full investigation." Complainant urges the Commission to affirm its earlier decision finding breach and order the Agency to reinstate Complainant's EEO complaint. In response, the Agency contends that the record at issue was not housed in the employee's OPF or Local HR File and that the supervisor's records were not part of the "record" at issue. 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). We have previously found that the Agency breached the Agreement. The record, as supplemented, still supports that finding. The Agreement required the removal of the PEP and that the PEP not be communicated. Further, the Professor in the College of Security Studies stated that he had been directed to remove any records of the PEP in his possession, but the supervisory files were located in the office of the Dean and that he did not recall discussing the requirement to remove the PEP from the records with the Dean. The PEP was not removed from all records and it remained in the record of the Dean's file. The existence of the record was in evidence since the subject PEP was provided during discovery from the Agency records. Moreover, Complainant showed sufficient evidence of harm. In the fall of 2013, the Dean convened a promotion board. Complainant was not promoted and her requests for a pay raise were denied. The Agency's "cure" did not reverse the harm. Complainant has requested reinstatement of her complaint. We grant the request and order the Agency to comply with the Order below. CONCLUSION Accordingly, we REVERSE the Agency's finding of No Breach and we REMAND the matter to the Agency for action consistent with the Order below. ORDER The Agency is ordered to 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. 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: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 24, 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 0120161242 5 0120161242