U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene R.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120180763 Agency No. ARBLISS17APR01429 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated December 19, 2017, finding that it complied with the terms of a June 23, 2017 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. The Commission accepts the appeal. BACKGROUND During the relevant time, Complainant worked as a GS-12 Clinical Pharmacist for the Agency's Interdisciplinary Pain Management Clinic, William Beaumont Army Medical Center (WBAMC) in Fort Bliss, Texas. Believing that the Agency subjected her to unlawful harassment and discrimination, based on her race and national origin, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Complainant alleged that management officials repeatedly made false statements regarding her qualifications and credentials2, and ignored her requests to explain the basis for their assertions. One management official threatened that she would be removed or forced to resign from the Agency. On June 23, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: The Agency agrees to take the following action 3.a. To provide [Complainant] training through a Focused Provider Practice Evaluation (FPPE) Plan not to exceed 180 days. The FPPE will be developed by WBAMC, San Antonio Military Medical Center (SAMMC), and any other facility where [Complainant] may perform a portion of her FPPE. The FPPE would take place within the WBAMC Health System. If any portion of [Complainant's] takes place at SAMMC or another Army facility, WBAMC will fund travel and per diem in accordance with the Joint Travel Regulation (JTR). Additionally, at the convenience of the Army, [Complainant] can perform training at other medical facilities. b. WBAMC will submit a request for payment to pay attorney's fees and costs to Tully Rinckey PLLC in the amount of $4,863.50 to the Defense Finance and Accounting Service within thirty (30) calendar days . . .. In exchange . . . [Complainant] agrees to 4.b. At the conclusion of her FPPE, [Complainant] agrees to provide two favorable letters of reference that comply with Army Regulation . . . to COL [JC], or the individual occupying the position of Deputy Commander for Patient Support. At least one of the two favorable letters of reference must come from an individual who supervised the training of [Complainant] during her FPPE. Within fourteen (14) calendar days upon receipt of all required documentation, the Deputy Commander for Patient Support will endorse and submit [Complainant's] Credentialing Package for approval. Once [Complainant's] Credentialing Package is approved she will immediately be placed in her position as a Clinical Pharmacist, GS-12, at the interdisciplinary Pain Management Clinic, WBAMC. c. If [Complainant] is unable to provide two favorable letters of reference that comply with Army Regulation . . . she agrees to return to a GS-11 pharmacist position at her previous GS-11 grade and step. d. If [Complainant] is successful in her FPPE and her Credentialing Package is approved as discussed in paragraph 4b above, she agrees to remain employed within WBAMC for 12 months after the conclusion of her FPPE. In October 20173, the Agency notified Complainant that it was "unable to provide training to [Complainant] through the FPPE as outlined in the settlement agreement dated 23 June 2017." The Agency explained that when Complainant's credentials file was presented to the Credentials Committee, for a vote on granting her the privileges needed for placement on the FPPE, it concluded it was unable to do so due to the absence of two letters of reference/peer recommendation regarding her skill and ability as a clinical pharmacist. According to the Agency, its efforts to obtain a waiver to the requirement were unsuccessful. The Agency found that to do so would violate Agency policies and put the Clinic's accreditation at risk. Providing further explanation, the Agency stated that when Agency counsel and the Deputy Commander for Patient Support negotiated the agreement, they did not know Complainant would first need to be granted privileges prior to placement on an FPPE. Instead, they believed that Complainant would gain the needed practical experience during her time one the FPPE, a supervised setting, and even potentially obtain the peer recommendations required by the Credentials Committee. By letter to the Agency, dated November 3, 2017, Complainant's attorney alleged breach and requested that the Agency specifically implement the terms of the subject agreement. Complainant, through her attorney, described the Agency's October 2017 correspondence and noted that in addition to violating provision 3.a., the Agency "had no intention whatsoever to place Complainant back in her position as Clinical Pharmacist, GS-12 . . . as noted in section 4.b. Complainant argues that a review of Agency policy and procedure "reveal the agency's contentions to be hollow and without merit". Moreover, Complainant asserted that the Agency's breach is "willful". Complainant requested placement in FPPE, as set forth in 3.a., "or by returning her immediately to her position of Clinical Pharmacist, GS-12, at WBAMC." In its December 19, 2017 decision, the Agency concluded that the agreement was void due to mutual mistake. The Agency reasoned that the parties acted in good faith. The Agency asserts, however, that both parties mistakenly relied upon the material, and erroneous, fact that Complainant would be able to participate in FPPE without being granted privileges. The Agency found, instead, that due to her lack of experience in a clinical setting, Complainant was unable to provide the Credential Committee with two letters of recommendation. In turn, she could not be placed in FPPE. Without the required FPPE training, the Agency reasoned that Complainant could not be reinstated as a GS-12 Clinical Pharmacist. The Agency concluded that because the settlement is void, Complainant should decide between retaining the benefits she received (i.e. attorneys' fees) or return the benefits and reinstate her underlying EEO complaint. 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). In the instant case, the Agency contends the settlement agreement should be considered void due to mutual mistake. Under the general principles of contract law, a party may avoid an otherwise valid contract because of a mistake. One who attacks a settlement agreement bears the burden of showing fraud or mutual mistake. See Asberry v. United States Postal Service, 692 F. 1378, 1380 (Fed Cir. 1982). The party attempting to avoid the contract must prove that: (1) the mistake related to a basic assumption upon which the contract was made; (2) the mistake had a material effect upon the agreement, and (3) the mistaken parties did not assume or legally bear the risk as to the mistaken fact. Restatement (Second) of Contracts 152, see also Skyline Corp. v. National Labor Relations Board, 613 F.2d 1328 (5th Cir. 1980). As noted above, the Agency argues that the parties mistakenly believed that Complainant could participate in the FPPE without two letters of recommendation and obtain those letters following her FPPE experience. The letters, in turn, would be included with Complainant's Credentialing Package for approval. According to the Agency, Army Regulations (AR 40-68) prohibit participation in FPPE without such recommendations and a waiver is not possible. In response, Complainant asserts that the Agency's objections to specific enforcement are "circular, unsupported by evidence or law, and hyperbolic." We agree. According to Complainant, she was hired by the Agency, in November 2016, as a GS-12 Clinical Pharmacist. Prior to beginning her work, on or about November 28, 2016, Complainant provided letters of recommendation and was approved by the Credentialing Office. Thereafter, in February 2017, two Agency officials remarked that Complainant was not qualified for her position because she was not properly vetted. In March 2017, such remarks continued, indicating that the Agency wished to remove her. Complainant asserts that in the wake of these events, she then contacted an EEO Counselor. Complainant contends that in early May 2017, the Agency acknowledged that any alleged deficiency in her prior credentials could be remedied through one-on-one shadowing (i.e. FPPE). However, due to staffing issues the Agency did not intend to offer FPPE to Complainant at that time. Weeks later, the parties participated in mediation and executed the instant June 23, 2017 settlement agreement which provided Complainant, in pertinent part, with "training through a FPPE Plan." However, the Agency failed to take any action in the months that followed. In October 2017, Complainant contacted her attorney regarding the status of compliance. Complainant's counsel contacted the Agency, which responded by stating it had no intention of adhering to the agreement's terms. Complainant argues that the Agency is in clear breach of the agreement, and it has failed to show mutual mistake or impossibility. Complainant asserts that, based on the settlement language, "it is clear that the intent of the parties was for Complainant to engage in FPPE . . . for a period [not to exceed] 180 days . . . in order to obtain the two letters of reference required by AR 40-68 . . .." Further, she asserts that the Agency has not provided specific citation within AR 50-68 to support its non-compliance. Complainant contends that to now apply the Agency's new understanding, goes beyond the scope of intent and understanding at the time the agreement was entered. The Commission agrees that the Agency has failed to meet its burden in establishing mutual mistake. The Agency has provided various pages from a document titled "2015 Hospital Accreditation Standards", as well as "Army Regulation 40-68, Medical Services Clinical Quality Management, May 2009". The Agency, however, has not shown which particular portion of the regulation supports its assertion that compliance with 3.a. is impossible. Moreover, if the Agency wanted the parties to be bound by such regulations, they should have included specific references to them in the settlement language. In interpreting such agreements, we are bound by the "four corners" of the document. Further, we agree with Complainant, that any "mistake" in the instant case was made by the Agency itself. We are not persuaded to void an entire agreement because Agency counsel and Deputy Commander for Patient Support, who negotiated and executed the agreement on behalf of the Agency, were unaware of the alleged requirements for FPPE participation. Moreover, the conditional language used by the parties in provisions 4. c. and 4.d. illustrate the parties ability to express such intended limitations. This language is noticeably absent from 3.a. We shall not impute any unexpressed meanings into the agreement. The Commission finds that the Agency has breached provision 3.b. of the settlement agreement. Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. Complainant has requested specific performance. Therefore, the Agency shall provide Complainant training through FPPE as set forth in provision 3.a. of the June 23, 2017 settlement agreement. CONCLUSION Accordingly, the agency's decision finding that the agreement was void is REVERSED and the matter is REMANDED to the Agency for remedial relief consistent with the ORDER below. ORDER Within thirty (30) calendar days of the date this decision was issued, the Agency shall provide Complainant training through a FPPE in accordance with provision 3.b. of the June 23, 2017 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 corrected 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. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations April 11, 2018 __________________ 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 According to the Agency, while a GS-11 pharmacist must hold the required education and license, she is not considered a provider (which requires privileges) as a GS-12 clinical pharmacist is considered. 3 While the correspondence is not dated, Complainant's attorney states the communications with Agency counsel occurred "on or about October 12, 2017." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180763 8 0120180763