U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lewis Z.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 0120161317 Agency No. DHANCR150061 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision (FAD), dated January 28, 2016, 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 compliance action, Complainant was an applicant for employment at the Agency's Fort Belvoir Community Hospital facility in Fort Belvoir, Virginia. On October 28, 2015, Complainant and the Agency entered into a settlement agreement to resolve the EEO complaint filed by Complainant. The settlement agreement provided, in pertinent part, that: (3a) The Agency agrees to hire Complainant as a full time Police Officer, GS-0083-07, Step 9. Complainant understands that to retain such employment, all conditions of employment must be met and maintained; (3b) Within 15 business days of the execution of this agreement, [the Agency will] take all necessary steps to ensure all paperwork is processed and sent to Defense Financial Accounting Systems (DFAS) to reflect Complainant's hire date as May 31, 2015. Complainant's hire date will be back-dated to May 31, 2015; (3c) Agency will be responsible to promptly pay both the Agency and employee portion of mandatory retirement benefits due from May 31, 2015 through the first day of Complainant's employment; (3d) Agency will be responsible to promptly pay both the Agency and employee portion of the federal dental care benefits (FEDVIP) due from May 31, 2015 through the first day of Complainant's employment. Agency will ensure the FEDVIP paperwork is backdated to show a start date of May 31, 2015; and (3e) "Agency will be responsible to promptly pay TSP back payments in the amount of 5% as well as the Agency-allowed match of 5% from May 31, 2015 through the first day of Complainant's employment. " The record shows that Complainant was hired and the Agency initiated the documentation to support the hire within 15 business days of the execution of the Agreement. With regard to the back TSP, the Agency was informed of the requirements of 5 U.S.C. 8432 and 5 CFR 1605.13, which are applicable for retroactive TSP adjustments for back pay awards. The Agency was advised by DFAS that DFAS could not lawfully effectuate the TSP term. Consequently, one of the terms of the Agreement (3e) was not implemented. By letter to the Agency dated December 29, 2015, Complainant alleged that the Agency was in breach of the settlement agreement. He requested that the Agency specifically implement its terms. After receiving notice of the alleged breach, the Agency offered to pay Complainant directly the sum of $2,728.74, which was the amount of the TSP back payments to which he was entitled under the terms of the Agreement. The Agency concluded that it acted in good faith and was in compliance with the negotiated settlement agreement. This appeal followed. On appeal, Complainant maintains that Complainant trusted and relied on the Agency to verify that anything written in the agreement could be upheld prior to management's signing the Agreement. Complainant acknowledged that "DHA may have steps currently in place to uphold the Agreement, [but] it is outside of the reasonable timeframe as [the Agreement] was signed over 2 months ago." 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). In the instant case, the Agreement required the Agency to hire Complainant and to initiate the paperwork for Complainant's hire and benefits, which the Agency did. The Agreement did not specify a date certain for the accomplishment of the tasks or the receipt of the benefits. Further, to the extent there had been a breach, we find that the Agency cured the breach by offering Complainant the option to receive the monetary equivalent of the TSP payment owed and by continuing to work toward getting the dental benefits and other terms met. For these reasons, we find that Complainant failed to show that the Agency was in non-compliance with the Agreement. CONCLUSION Accordingly, we AFFIRM the Agency's Final Decision. 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 (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 June 14, 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 0120161317 4 0120161317