U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reita M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171138 Agency No. 2003-0629-2016105205 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 6, 2017, finding that the parties did not enter into a valid settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Nurse at the Agency's facility in New Orleans, Louisiana. In an email to an EEO Program Manager dated September 28, 2016, Complainant states that she was seeking a formal written settlement agreement. She stated that she attended a mediation session on September 7, 2016, and that she "was left to believe a resolution had been reached only to learn that the promises were empty because the agreement was never [formalized], but was placed in a simple email format."2 In a final decision dated January 6, 2017, the Agency found that there was no valid settlement agreement between the parties. The Agency noted that Complainant filed a formal EEO complaint on October 21, 2016, regarding the underlying matter and that on December 6, 2016, the Agency's accepted Complainant's complaint. The instant appeal followed. On appeal, Complainant reiterates her dissatisfaction with the mediation session and states that she was not advised that she needed a written agreement. Complainant reasserts that a verbal agreement was breached when she was reassigned. 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, we concur with the Agency that the parties have not entered into a valid settlement agreement. The record is devoid of a written settlement agreement that has been signed by both parties. See 29 C.F.R. § 1614.603. We have upheld the validity of a settlement agreement reached orally when a verbal agreement is reached during a hearing before an EEOC Administrative Judge and transcribed by a court reporter. See Acree v. Dep't of the Navy, EEOC Request No. 05900784 (Oct. 4, 1990). In the instant matter, there is no valid oral settlement agreement as described in Acree. Based on the foregoing, we do not find that the parties have entered into a valid settlement agreement. Accordingly, we AFFIRM the Agency's final decision finding that the parties have not entered into a valid settlement agreement. 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 April 21, 2017 __________________ 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 The record does not contain a copy of this email. Complainant asserts that the email was in a protected mode; thus, she was unable to print the actual email. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2017-1138 4 0120171138