U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kiara R.,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120172774 Agency No. HSTSA250642016 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) following unsuccessful attempts by Complainant to obtain full compliance from the Agency regarding the terms of an April 28, 2017 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 for the Agency as a Transportation Security Officer at the Hartsfield Atlanta International Airport in Atlanta, Georgia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 28, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part: Section B. The Agency agrees to the following: (1) The Agency will pay Complainant Seventy-Four Thousand dollars ($74,000.00). Such payment will be made by electronic fund transfer to Complainant's bank account as soon as practicable but no later than ninety (90) days from the date the Agency receives Complainant's banking information.... Following failed communications between Complainant's attorney and the Agency, including a conference on August 10, 2017, with the Administrative Judge (AJ) who had assisted in the settlement agreement, Complainant's attorney filed the following appeal. Complainant alleged breach and requested that the Agency implement the terms of the subject agreement. Specifically, Complainant alleged that the Agency failed to fully pay her the agreed upon $74,000.00. Complainant acknowledged receipt of $72,076.83. However, Complainant states that the Agency is improperly withholding $1,923.17 as alleged payment for health insurance premiums from the period when she was employed. Additionally, Complainant alleges that in connection with her settlement agreement, the Agency is now demanding that she pay $3,228.24 as repayment for alleged advanced leave payments. Complainant contends the issue of improper leave was part of her original claim of discrimination and led to the settlement agreement in question. Complainant requests that the Agency be ordered to cease and desist all demands for repayment of the $3,228.24. In response, the Agency argues that it is in full compliance with the April 28, 2017 settlement agreement. The Agency states that it timely sent an electronic funds transfer of $74,000.00 to Complainant, but that the U.S. Coast Guard Finance Center, the entity that processes the Agency's settlement payments, offset the amount by $1,923.17 as debt that Complainant owed for her health care premium. Additionally, the Agency argues that Complainant was aware of this debt as early as November 3, 2016. Regarding the $3,228.24 repayment request, the Agency argues that the settlement agreement did not specifically prohibit the collection of that debt. The Agency argues that, The merits of the underlying debt are not before the Commission...Whether Complainant requested the advance sick leave is immaterial, as [the Agency] advanced her pay and she never repaid it. 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, Complainant alleged breach of the April 28, 2017 settlement agreement when she only received $72,076.83 of the agreed upon $74,000.00 figure that was expressly identified in the agreement. Here, the Agency attempt at justification for the lesser amount paid it that although it had issued a check for $74,000.00, the finance department offset the amount by $1,923.17. As documented in the Agency's appellate opposition brief, Agency officials were aware of the possibility that Complainant may have owed the government $1,923.17. Had the matter been of such importance to Agency officials, it should have contemplated this matter in the settlement agreement. Instead, the Agency failed to expressly identify the possibility that it, or other related government entities, may attempt to recoup debts owed. Here, the April 28, 2017 settlement agreement clearly and expressly reads that "[t]he Agency will pay Complainant Seventy-Four Thousand dollars ($74,000.00)." Therefore, it is clear from the record that the Agency is non-compliant in the April 28, 2017 settlement agreement. Regarding the demands for Complainant to pay the Agency $3,228.24 for alleged advanced leave payments, we find that the Agency is attempting to go beyond the agreed upon terms of the April 28, 2017 settlement agreement. The Commission will not entertain the Agency's attempts to obtain repayment of $3,228.24 through the instant appeal. We find that Agency has failed to comply with the terms of the settlement agreement, and accordingly, we find that the Agency to must comply with the following ORDER. ORDER The Agency is ordered to take the following remedial action: 1. Issue Complainant, within thirty (30) days, payment of $1,923.17. 2. Pay Complainant's Attorney reasonable any attorney fees and costs necessary to enforce this settlement agreement. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. Carlton M. Hadden, Director Office of Federal Operations October 31, 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 0120172774 6 0120172774