U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cyrus H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162157 Agency No. 200P-0348-2013104155 DECISION Complainant filed a timely appeal with this Commission from an Agency decision, dated May 26, 2016, regarding its alleged non-compliance with the terms of the settlement agreement into which the parties entered. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked at the Agency's Portland Regional Office in Portland, Oregon. Believing that the Agency subjected him to unlawful discrimination, based on disability and in reprisal for prior protected EEO activity, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. While the matter was pending before an EEOC Administrative Judge (AJ), on December 9, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2) Within 60 days after execution of this Settlement Agreement, the Agency shall restore 60 hours of Annual Leave and 20 hours of Sick Leave to Complainant's leave balance. Agency will also convert 70 hours of time that was originally counted as Leave Without Pay (LWOP) to paid time. By correspondence dated March 29, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency "has still not complied . . . and no leave has been reimbursed and no LWOP has been restored." In its May 26, 2016 decision, the Agency concluded that it had not "fully complied", but "hope[d] that the issue will be resolved in the near future." According to the Agency, while it did restore 60 hours of Annual Leave (AL) and 20 hours of Sick Leave (SL), the parties experienced "mutual mistake" with respect to the amount of LWOP. The agreement provided for the conversion of 70 hours of time, when an inquiry revealed that Complainant only had 62.25 hours of LWOP on record. The parties, stated the Agency, reformed the agreement to reflect the accurate amount of LWOP hours. Nonetheless, changes in the payroll system "caused difficulties in making the necessary corrections to [Complainant's] timecards." Since partial performance had occurred, the Agency reasoned that specific performance was the appropriate remedy. Complainant filed the instant appeal. 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). A review of the instant record reflects the Agency's ongoing delays in fulfilling its obligations under the December 9, 2015 agreement. While the agreement required the Agency to take action within 60 days, the record contains a March 16, 2016 memorandum to "Payroll" regarding the implementation of provision (2). Thereafter, throughout the month of April 2016, the record reflects that the Agency tried, unsuccessfully to correct Complainant's timecards. It appears that the Agency's efforts did not even begin until the time limit had already expired. Responding to Complainant's appeal, in correspondence dated September 19, 2016, the Agency reiterates its assertion that it has made "good faith efforts" to cure the breach. It notes that Complainant has not alleged that the Agency has acted in bad faith nor shown how he has been harmed by the delay. Nonetheless, we note that approximately six months have passed since Complainant has alleged breach and the Agency still has not converted his LWOP (62.25 hours) to paid time. In its own decision, the Agency concluded that the corrections would be made within thirty calendar days. We are not persuaded by its assertions that "technical reasons over which [it] has simply had no control", are responsible for the ongoing delay. Therefore, we find that the Agency is in breach of the agreement. As noted above, the Agency reasoned that since it had "substantially complied" with the settlement agreement, specific performance is the most appropriate remedy. The Commission disagrees. We have held that the failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required action were subsequently complied. Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April 25, 1996); Sortino v. United States Postal Service, EEOC Request No. 05950721 (November 21, 1996), citing Baron v. Department of the Treasury, EEOC Request No. 05930277 (September 30, 1993) (two weeks delay in transfer of official letter of regret rather than letter of apology found to be substantial compliance); Centore v. Department of Veterans Affairs, Appeal No. 01A04637 (November 2, 2000) (a few days after sixty day time period for compliance not a material breach of settlement agreement). However, in the instant case, the Agency has not "subsequently complied." The settlement agreement only required the Agency to: restore 60 hours of AL, 20 hours of SL, and convert LWOP to paid time. The Agency has not yet completed one of the three tasks it was required to complete in exchange for Complainant withdrawing his EEO complaint. When we find a breach, we have two choices: specific performance or reinstatement of the underlying complaints. If Complainant choses to reinstate his complaint, he would have to return to the status quo (i.e. returning previously restored AL and SL). If he chooses specific performance, the Agency is required to convert Complainant's LWOP to paid time. Since Complainant has not expressed a preferred remedy, the matter is remanded to the Agency, where it will provide Complainant with the option of specific performance or reinstatement of his underlying EEO complaint. CONCLUSION The Agency's decision is MODIFIED and the matter is REMANDED to the Agency in accordance with the Order below. ORDER Within 15 days of the date this decision becomes final, the Agency shall notify Complainant of his option to return to the status quo prior to the signing of the settlement agreement and having his complaint reinstated or having the terms of the agreement specifically enforced. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the agency's notice within which to notify the agency of his choice. Complainant shall be informed that in order to return to the status quo ante, he must return any benefits received pursuant to the agreement. If Complainant elects to return to the status quo ante, and all benefits (i.e. 60 hours of Annual Leave and 20 hours of Sick Leave) are returned, the Agency shall resume processing Complainant's complaint from the point processing ceased pursuant to 29 C.F.R. § 1614.108 et seq. If Complainant elects not to return to the status quo ante, the Agency shall notify Complainant that the terms of the settlement agreement will be specifically enforced. Further, it shall convert Complainant's LWOP to paid time, within fifteen days of Complainant's election of specific performance. A copy of the agency's notice to Complainant regarding his options, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying complainant that the terms of the agreement will be specifically enforced and evidence of such performance, 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 (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 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 October 3, 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 0120162157 2 0120162157