U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyle S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120182186 Agency No. ARYONGSAN16MAY02111 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated May 8, 2018, finding that it was in compliance with the terms of a February 17, 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 as the Chief at the Agency's the Plans Analysis and Integration Office in Yongsan, South Korea. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 17, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The February 17, 2017 settlement agreement provided that: 4. The Agency agrees to issue the attached letter to Complainant, reaffirming the Agency's commitment against any and all false and defamatory communications in the workplace. The letter in question stated the following, SUBJECT: Command Commitment to Dignity and Respect in the Work Environment This command reaffirms its commitment to fostering and maintaining a work environment free from all inappropriate conduct, including dissemination of false and defamatory communications against another employee. While this has and continues to be the position of the command, this memorandum is issued specifically as a condition of the settlement of the following EEO Complaint: Complainant v. Robert M. Speer, Acting Secretary of the Army [...] DA Docket Number ARYONGSAN16MAY02111 By letter to the Agency dated April 23, 2018, Complainant alleged breach, and requested that the Agency specifically implement the terms of the subject agreement. Specifically, Complainant alleged that the Director of Human Resources continued to make false and derogatory statements about him through official complaints. Complainant alleged that the Agency knew of the Director's behavior and chose not to take any actions. In its May 8, 2018 final determination, the Agency found no breach. The Agency determined that Complainant's primary contention was that the Director made false statements about him in his various EEO complaints, which was not the main concern of the settlement agreement. The Agency determined that the plain meaning of the settlement agreement obligated the Agency to issue the above referenced letter, and that it had done so. The Agency also determined that the breach claim was not timely filed. The instant appeal followed. On appeal, Complainant asserts that the issue is not about the Agency's inability to control what the Director says, but rather its failure to enforce standards of behavior. Specifically, the Agency failed to hold the Director accountable for repeatedly making false claims regarding Complainant in official documents. Complainant asserts that the Agency has also exhibited a lack of good faith in addressing these matters. 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). As a preliminary matter, we will address the Agency determination that the breach claim was not timely raised. On appeal, Complainant asserts that he contacted the Agency on January 17, 2018, regarding a separate investigation, to inform the Agency that the Director "was continuously committing perjury." In April 2018, the Agency informed Complainant that it had closed that separate investigation, and did not address the above referenced perjury claim. Complainant thereafter contacted the Agency on April 23, 2018, alleging breach of the instant settlement agreement. Given these circumstances, we determine that the breach claim was timely raised, and we will now turn to the substance of the breach claim. When a settlement agreement lacks adequate consideration, it is unenforceable. See Collins v. United States Postal Service, EEOC Request No. 05900082 (April 26, 1990). Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, if some legal detriment is incurred as part of the bargain. When, however, one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. MacNair v. United States Postal Service, EEOC Appeal No. 01964653 (July 1, 1997). Also, a settlement agreement that is too vague to enforce is invalid. See Bibb-Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009). Applying these legal principles, we find that the instant agreement is invalid due to lack of consideration. The instant agreement provides solely that the Agency's obligation was to issue a letter "reaffirming the Agency's commitment against any and all false and defamatory communications in the workplace." Because the Agency is required to treat all employees with dignity and respect, and is prohibited from retaliating against them, the promises made to Complainant in this regard offer Complainant no more than that to which he is already entitled as an Agency employee. Therefore, we find that instant agreement lacks adequate consideration, and is thus unenforceable. Accordingly, the Commission REVERSES the Agency's letter of determination. The Commission hereby voids the instant settlement agreement and REMANDS this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to resume the processing of the underlying matter from the point processing ceased pursuant to 29 C.F.R. Part 1614. Within thirty (30) calendar days of the date this decision is issued, the Agency shall notify Complainant in writing that it has reinstated his EEO complaint. The Agency must provide a copy of this notice to the Compliance Officer as referenced below. 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, Director Office of Federal Operations September 12, 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 0120182186