EEOC Appeal 2020001625

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Archie D,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 2020001625
Agency Nos. 54-2016-00180 and 54-2019-00172
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated December 5, 2019, finding
that that there was no breach of the terms in a July 16, 2019 document because the document did
not constitute a valid enforceable 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 scientist in the Agency’s National Centers
for Environment Information (“NCEI”) in Ashville, North Carolina.
Prior to the matter at issue, Complainant filed two formal EEO complaints regarding his non-
selection for two positions at the NCEI. In 2016, Complainant filed a formal complaint
regarding his non-selection for a Physical Scientist position (Complaint No. 54-2016-00180). In
2019, Complainant filed a formal EEO complaint regarding his non-selection for a Chief of Staff
position (Complainant No. 54-2019-00172).
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.

2020001625	2
While Complaint No. 54-2016-00180 was still pending, Complainant sought to resolve his 2019
complaint through the mediation process which occurred in July 2019.
On July 15, 2019, the Agency’s Alternative Dispute Resolution Program Manager (“ADR
Manager”) emailed Complainant and the NCEI Director regarding their agreement to participate
in mediation scheduled for July 16, 2019. In the email, the ADR Manager informed them that
implementation of any agreement required the following: (1) a legal review of the agreement by
the Office of General Counsel (“OGC”) and (2) concurrence signatures from the Director of
Office Human Capital Services (“OHCS”), the Director of the Office of Inclusion and Civil
Rights (“OICR”), and a signature from the OGC. The record reflects that these requirements are
consistent with the Agency’s polices and internal regulations for its ADR Program, specifically
for implantation of settlement agreements.2
On July 16, 2019, Complainant and the NCEI Director participated in a mediation. A copy of
the “Global Settlement Agreement,” initialed by the mediator, Complainant, and the NCEI
Director stated the following terms:
NCEI Director will detail Complainant into a currently vacant ZP-1301-4 position
as Acting, with Temporary Promotion for 120 days, while the position is
advertised.
NESDIS Deputy Administrative Assistant will make this vacancy the next hiring
priority and will push for Direct Hiring Authority.
The position will include specialized experience in Climate Normal Project
Management and this position will lead this effort going forward.
NCEI will provide a technical writer/coach to facilitate resume/application
package and interview preparation.
For a global settlement to be reached for this case and one additional open EEO
case,3 it is contingent on full implementation of the above terms.
On July 19, 2019, Complainant’s attorney emailed OGC inquiring about the agreement terms
made on July 16, 2019. After email exchanges between Complainant’s attorney and the OGC,
the OCG informed Complainant’s attorney on July 22, 2019, that her office reviews mediation
agreements to ensure that the Agency could legally agree to these terms and she was “still
2 See Agency Administrative Order 202-715, Section 3.07 Settlement Agreement (effective
February 2, 2010); see also Agency Hand Book to NAO 202-715, Section C.07 Settlement
Agreement.
3 The record reflects, and Complainant concurs on appeal, that the unresolved EEO case
referenced here is Complaint No. 54-2016-00180.

2020001625	3
conducting” a review of agreement made on July 16, 2019. In a subsequent email, also on July
22, 2019, the Complainant’s attorney clarified that Complainant sought “immediate placement
into a ZP-IV position without competing under a vacancy announcement” even though the OCG
had informed Complainant’s attorney earlier that day that terms reached on July 16, 2019 reflect
that Complainant would have to compete for the permanent ZP-IV position and he would not be
guaranteed that permanent position.
On August 1, 2019, the OGC emailed Complainant’s attorney informing him that the Agency did
not accept Complainant’s offer and the OGC notified him that she was in the process of putting
together a counteroffer.
By email dated November 1, 2019, Complainant contacted the EEO office and alleged that the
Agency breached the terms of an agreement made on July 16, 2019. Specifically, Complainant
stated, in pertinent part, that:
On July 16, 2019, I entered into a global settlement agreement (see attached)
during the alternative dispute resolution of EEO Case # 54-2019-00124.4 This
settlement agreement was knowingly and voluntarily agreed to by both parties.
Unfortunately, the Agency has yet to implement this agreement, despite my
inquiries on October 4 and 7, 2019 regarding implementation inquiries which
have not been answered by the Agency.
In its December 5, 2019 decision,5 the Agency found no breach. The Agency determined that
the terms agreed during the July 16, 2019 did not represent a valid, binding, and enforceable
settlement agreement because and there were no concurring signatures from the OGC, HCS, or
OIC following an OGC review as required by Agency policy for the implementation of
settlement agreements.
The instant appeal followed. On appeal, Complainant argues that the terms from the July 16,
2019 meeting constituted a binding settlement agreement and the Agency breached the agreed
upon terms.
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.
4 The Agency indicated in its final decision that any references to Complainant No. 54-2019-
00124 should be understood to refer to Complaint No. 54-2019-00172.
5 Because the terms of the July 16, 2019 agreement included Complaint No. 54-2016-00180, the
Agency included both formal complaints (Complaint No. 54-2016-00180 and Complaint No.
54-2019-00172) in its final decision.

2020001625	4
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 find that there was no legally binding settlement agreement entered on
July 16, 2019. Although the OGC, at one point, reviewed the terms of the July 16, 2019
meeting, the OGC did not complete this review. The record reflects that Complainant’s attorney
contacted the OGC and requested that Complainant be placed in the ZP-IV position without
competition even though the OGC indicated that her review of the terms of the July 16, 2019
document reflected that Complainant would have to compete for the position. Additionally, the
record reflects that the Agency rejected Complainant’s offer to be placed in the position without
competing for it.
Nevertheless, the July 16, 2019 document omits the three signatures from OGC and the Directors
of OHCS and OICR, as required per the Agency’s internal and regulatory policies on settlement
agreements. The record reflects that the Agency notified Complainant of this requirement before
the July 16, 2019 meeting. Therefore, there is no indication from the record that Complainant
entered a valid, enforceable contract with the Agency on July 16, 2019, because the document
did not include the required signatures needed for implementation.
CONCLUSION
The Agency’s final decision finding that Complainant did not enter into a valid settlement
agreement on July 16, 2019 is AFFIRMED. Processing should continue for any EEO matters
purportedly settled by the July 16,2019 document.
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:

2020001625	5
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 (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.

2020001625	6
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
May 5, 2020
Date