EEOC Appeal 2020001310

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cecile S,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Request No. 2020001310
Appeal No. 2019000957
Agency No. ARFTSAM14NOV04224
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2019000957 (October 31, 2019).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).
In the underlying complaint, on June 18, 2015, Complainant and the Agency entered into a
settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent
part, that:
3. 	The Army agrees to:
(a) Restore 200 hours of sick leave to the Complainant based on further
documentary evidence from the Complainant specifying the precise days
she used sick leave during the timeframe of January 14, 2013 to February
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.

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13, 2015, providing the Complainant submits the documentary evidence
within 20 calendar days of the signing of this agreement; ....
The Commission found that there was no evidence that the Agency paid her the benefits specified
in paragraph 3(a) and therefore found that there was a breach. We determined that there was
insufficient evidence to show that the Agency took the necessary steps to cure the breach after
Complainant provided the Agency with notice of her breach claim. 	The Commission ordered
specific performance that included the restoration of 200 hours of sick leave.
In the Agency’s request for reconsideration, the Agency argues that the Commission’s decision
contained erroneous interpretations of material law. 	Specifically, the Agency argues that the
Commission erred in finding that to enforce the agreement as it is written (the Complainant’s
obligation to provide documentary evidence within 20 calendar days) would make the provided
consideration “illusory.” The Agency also argues that the Commission failed to address the lack
of timeliness of the Complainant’s allegation of breach.
After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
deny the request. Specifically, with respect to the Agency’s argument that the Commission erred
in finding that not providing the 200 hours of sick leave made the consideration illusory, we find
that the decision fully explained that Complainant gave up her right to file an EEO complaint in
consideration for the Agency’s restoration of her leave. We agree that to read the Agreement as
rendering the Agency’s obligation (to restore the leave) null and void would make the
consideration 	provided 	in 	paragraph 	3(a) 	illusory. 	Additionally, 	the 	record 	showed 	that
Complainant attempted to gather the leave information requested by the settlement agreement but
was stopped by management. Therefore, we find that the Agency has failed to meet the criteria of
reconsideration for this issue.
Further, with regard to the Agency’s argument regarding the timeliness of Complainant’s
allegation of breach, we find failure to perform in accordance with deadlines specified in a contract
does not necessary constitute a breach of contract: “[T]ime is not ordinarily of the essence of the
contract unless made so by express stipulation or unless there is something connected with the
purpose of the contract and the circumstances surrounding it which makes it apparent that the
parties intended that the contract must be performed at or within the time named” Am Jur. 2d
Contracts § 471. In this case, neither Complainant nor the Agency insisted on including a “time is
of the essence” clause in the settlement agreement. Further, the Commission has held that the
failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of
substantial compliance of its terms, especially when all required actions were subsequently
completed. Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April 25, 1996).
See Garzino v. Department of the Army, EEOC Appeal No. 0120072847 (September 27, 2007).
We find that Complainant acted in good faith to see that she complied with its obligations under
the settlement agreement. For these reasons we do not find that Complainant’s late performance
constituted a breach or waiver of her request for the restoration of her leave. 	Accordingly, the
decision in EEOC Appeal No. 2019000957 remains the Commission's decision. 	There is no

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further right of administrative appeal on the decision of the Commission on this request. 	The
Agency shall comply with the Order as set forth below.
ORDER
Within sixty (60) days of the date this decision is issued, the Agency shall restore 200 hours of
sick leave to Complainant and provide both Complainant and the EEOC Compliance Officer, as
referenced below, with clear, understandable evidence that it has restored to Complainant 200
hours of sick leave during the timeframe of January 14, 2013 to February 13, 2015.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the
report must include supporting documentation of the Agency's restoration of 200 hours of sick
leave, along with a calculation of any other benefits due Complainant, including evidence that the
corrective action has been implemented.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.
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.

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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
September 11, 2020
Date