U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cory C.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120162470 Agency No. ARBENNING15OCT03914 DECISION Complainant filed an appeal with this Commission from an Agency decision, dated June 23, 2016, finding that it was in 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 as the Manpower and Equipment Chief at the Agency's Maneuver Center for Excellence in Fort Benning, Georgia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 1, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (4)(a) To consider the information provided by Complainant in accordance with paragraph 5, below, and to change the rating in question to the extent that it is warranted by that information. This will be accomplished within 30 days of Complainant's submission of information. (5) In consideration of the Agency's actions as outline in paragraph 4, the Complainant agrees to the following: (a) To provide the Agency with specific information as to how Complainant believes he exceeded those performance objectives on which he was rated "Met" on August 31, 2015. This information will be provided directly to [Person J] via email within 30 days of the signing of this agreement. By letter to the Agency, dated May 23, 2016, Complainant alleged breach, and requested that his underlying complaint be reinstated. Specifically, Complainant claimed that [Person J] "did not consider the rewrite of my performance objectives as outlined or act in good faith . . . ." Further, he contended that Person J "used the agreement as a platform to launch an uncalled for criticism against me for filing a grievance against her. . . ." In its June 23, 2016 decision, the Agency found no breach. According to the Agency, Complainant submitted his rewritten information, as required by the agreement. In turn, Person J considered his submission, but concluded that it did not warrant a revision of his performance appraisal. Person J found Complainant's information to be inaccurate and incorrect, noting that Complainant's workload did not increase by 30% and he did not accomplish 90% of his workload at or above standard. The Agency reasoned that Person J's disagreement with Complainant's assessment was not evidence of bad faith. Finally, to the extent that Complainant believes he was subjected to retaliation, the Agency advised him to raise it as a new claim of discrimination. Complainant filed the instant appeal. Complainant argues that the agreement should be vacated for inadequate consideration. In response, the Agency contends that Complainant "had no right to submit additional information to his senior raters beyond the time period . . . which had already passed." The Agency argues that by agreeing to accept Complainant's documentation and review his appraisal, it incurred a legal detriment. 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). Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. United States Postal Service, EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994); (citing Terracina v. Department of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992)). In the instant case, the plain language of the agreement only requires the Agency to "consider the information provided by Complainant" (emphasis added), and not change the rating in question. We find that the Agency incurred no legal detriment. See Smith v. United States Postal Service, EEOC Appeal No. 0120065113 (January 16, 2009) (the Commission voided a settlement agreement for lack of consideration. In doing so, it found that the settlement agreement, in effect, simply stated that the agency would consider the complainant's request for reinstatement, which was not consideration). Therefore we find the March 1, 2016 is void for lack of consideration. Finally, to the extent Complainant raises additional claims of discrimination these matters should be addressed in a separate complaint. He is advised to seek EEO counseling if he wishes to pursue the matters through the EEO process. CONCLUSION Accordingly, since we find that the March 1, 2015 settlement agreement is void for lack of consideration, the Agency's decision finding no breach is REVERSED. The matter is REMANDED to the Agency, to reinstate the underlying complaint from the point that processing cease. ORDER The Agency is ordered to process the complaint from the point where processing ceased. The Agency shall acknowledge to the Complainant that it has reinstated the underlying complaint for further processing within thirty (30) calendar days of the date this decision becomes final. A copy of the Agency's letter of acknowledgment to Complainant that it has reinstated the processing of her underlying complaint 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 (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 (Nov. 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 (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 October 28, 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 0120162470 2 0120162470