U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luann L.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force (National Guard Bureau), Agency. Appeal No. 0120161629 Agency No. 413415006 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated February 10, 2016, regarding a November 20, 2015 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On November 20, 2015, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The November 20, 2015 settlement agreement provided, in pertinent part, that: 2. The Agency, in consideration of the mutual promises continued herein, agrees to the following: a. Within 7 days the Agency will process paperwork to reflect the Complainant's detail to unclassified duties at the GS-14 level for the period 1 Nov 14 - 19 Nov 15. b. Within 15 days the Agency will submit paperwork to DFAS [Defense Finance and Accounting Service] to pay Complainant $7970.00 for the period reflected in 2a above. c. Within 30 days the Agency will process paperwork to temporarily promote the Complainant to a GS-14, 0260 Special Emphasis Program Manager, to be effective 19 November 2015 until such time as the vacancy is filled or the Complainant is no longer performing the duties at which time the Complainant will convert to her previous position and pay grade. By letter to the Agency dated December 28, 2015, Complainant alleged breach of provision 2. Specifically, Complainant alleged that the Agency failed to provide her a copy of the paperwork indicating that the temporary promotion had been processed, and that the Agency failed to pay her the $7,970.00 lump sum identified in provision 2b, within 30 days following the signing of the settlement agreement. In its February 10, 2016 final decision, the Agency found that an Agency Commander stated that the Acting Director, Equal Opportunity (EO Acting Director) did not have settlement authority during the mediation and that he, the Commander, should have been "at the table" on behalf of the Agency. The Commander also stated that during the relevant period, the "Air side" of Air National Guard did not have an open GS-14, 0260 Special Emphasis Program Manager. The Agency also found that the Chief of Staff/National Guard Bureau (NGB) (Chief) stated that he did not give the EO Acting Director authority to "sit in" for the agency. The Chief also stated that he did not realize the EO Acting Director was actively engaged in mediation with Complainant when the EO Acting Director stated to him "if she [(Complainant)] did the work she should be compensated." Furthermore, the Chief stated that he was made aware of the settlement agreement after it was signed. Further, the Agency stated that the EO Acting Director stated that the Attorney Advisor, Litigation and Employment Law Division, gave him settlement authority to sit in for the Agency. The EO Acting Director stated that during the relevant period, the Agency had a GS-14-0260, Special Emphasis Program Manager vacancy. The EO Acting Director stated that he left the mediation session several times to confer with the Chief. The Agency also found that the Attorney Advisor, Litigation and Employment Law Division, stated that the Commander and the Deputy Director gave the EO Acting Director settlement authority. The Attorney Advisor stated while he typed up the instant settlement agreement, he did not provide a formal review. Furthermore, the Attorney Advisor stated that he asked the EO Acting Director if he ran the settlement agreement by the Deputy Director, and the EO Acting Director responded "yes." The Agency acknowledged that as of February 8, 2015, the Agency had not processed provision 2.a. The Agency determined that provision 2.b. was in process, but did not have an updates on when Complainant would receive the payment. Regarding provision 2.c., the Agency stated that it has to go through Air National Guard which would be declined by the Commander. Specifically, the Agency stated that the Commander would like additional time to look over the underlying complaint or even attempt Alternative Dispute Resolution. Moreover, the Agency determined that "the internal functions of the agency needs to be tweaked. As of right now the terms of the NSA [Negotiated Settlement Agreement] are still being routed through NGB, however NGB is unsure who should process the NSA." Complainant, on appeal, states that the Agency complied with provision 2.b. concerning her lump sum payment. However, Complainant states that the Agency is still not in compliance with provisions 2.a. and 2.c. The instant appeal followed. ANALYSIS AND FINDINGS 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, we must first address the crux of the Agency determination: that the Agency's EO Acting Chief had not been authorized to bind the Agency to process paperwork to reflect Complainant's detail to unclassified duties at the GS-14 level for the November 1, 2014 - November 19, 2015 period, and temporarily promote her to a GS-14, 0260 Special Emphasis Program Manager until such time as the vacancy is filled or Complainant is no longer performing the duties at which she will convert to her previous position and pay grade. The Agency has determined that these provisions of the agreement are unenforceable. The Commission has previously held that a signed settlement agreement, in order to be valid and enforceable, must be executed by an authorized representative of the Agency. Jacobsohn v. Department of Health and Human Services, EEOC Request No. 05930689 (June 2, 1994) (citing Soliz v. United States Postal Service, EEOC Request No. 05901010 (October 25, 1990)). However, the Agency must present evidence indicating that the signatory to the agreement lacked the authority to agree to its terms. See id. We reject the Agency's determination on this matter. First, the Agency presented no evidence indicating that its EO Acting Chief was not authorized to bind the Agency to the terms of the settlement agreement. Second, the Agency has submitted no internal regulations or procedures showing that parties such as the EO Acting Chief, representing the Agency in EEO matters, are not authorized to enter into settlement agreements with complaints, or are authorized to agree only to certain terms. Third, this is not a case where the Agency's representative has agreed to a settlement provision that exceeds the Agency's legal authority. See e.g., Thompson v. Department of Health and Human Services, EEOC Request No. 05910892 (March 11, 1992) (affirming the removal of a settlement agreement provision awarding appellant attorney's fees for the administrative processing of his complaints under the Age Discrimination in Employment Act (ADEA) because such fees are not contemplated under the statute: "In a settlement agreement, an agency cannot incur a financial liability that the agency is not legally obligated to incur"). Because the Agency has failed to provide evidence showing that its EO Acting Chief lacked the authority to agree to this provision on his own, we determine that the Agency has not met its burden of demonstrating that the invalidity of any or all of the subject agreement. See Jacobsohn, supra. We therefore determine that the settlement agreement in this case is valid and binding on both parties. The Agency has conceded that it is not in compliance with provisions 2.a. and 2.c. Where, has here, the Commission has determined that an agency is not in compliance with a valid settlement agreement and the noncompliance is not attributable to acts or conduct of the Complainant, we may order compliance with the agreement or we may order that the complaint be reinstated for further processing from the point processing ceased. 29 C.F.R. § 1614.504(c). Complainant appears to want specific enforcement of the agreement and we find that to be the appropriate remedy (rather than reinstatement of the settled matter). We remand the matter back to the Agency for specific enforcement of provisions 2.a. and 2.c. The Agency's final decision finding no breach of provision 2.b. is AFFIRMED. The Agency's final decision finding breach of provisions 2.a. and 2.c. is REVERSED and we REMAND the matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency shall specifically enforce provisions 2.a. and 2.c. of the November 20, 2015 settlement agreement. The Agency shall, within 30 calendar days of the date this decision becomes final, process the paperwork to reflect Complainant's detail to unclassified duties at the GS-14 level for the November 1, 2014 - November 19, 2015 period, and temporarily promote her to a GS-14, 0260 Special Emphasis Program Manager until such time as the vacancy is filled or Complainant is no longer performing the duties at which she will convert to her previous position and pay grade. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall notify Complainant that it will comply with this settlement agreement. The Agency shall provide documentation of the specific enforcement of the settlement agreement, and the notice of intent to comply, to the Compliance Officer as referenced herein. 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 (M0610) 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 9-18 (November 9, 1999). 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Complainants 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 23 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 0120161629 2 0120161629