EEOC Appeal 2020000791

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rico M.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 2020000791
Agency No. 200H03102019101084
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from a September 11, 2019 Final Agency Decision (“FAD”) finding that it was in
compliance with the terms of the settlement agreement into which the parties entered. 	See 29
C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative
Specialist, GS-10, at the VA Regional Office and Insurance Center, located in Philadelphia,
Pennsylvania.
On June 20, 2019, Complainant and the Agency entered into a settlement agreement (“Agreement
#1”) to resolve an EEO complaint in which Complainant alleged discrimination by the Agency.
In relevant part, Agreement #1 states:
1(a) 	…Complainant hereby voluntarily withdraws pending EEO complaints EEOO
Case No. 200H03102018104722… and all other claims arising under any
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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federal, state, or local law, regulation, or ordinance, against the Agency….in
any stage of processing in their entirety.
1(b) 	Except as provided for in this Agreement and in exchange for the terms provided,
Complainant hereby settles, waives, withdraws, and forever discharges the
Agency.…from any and all complaints, claims, grievances, appeals, expenses,
and 	damages 	of 	any 	kind, 	which 	are 	or 	may 	be 	asserted 	by 	the
Complainant….based 	on 	any 	event 	occurring 	before 	the 	Complainant's
execution of this Agreement.
. . .
2(c) 	Agency Obligations… Rescind proposed removal letters dated November 19,
2018 and May 31, 2019.
. . .
3(d) 	If applicable, the Complainant acknowledges that the Defense Finance and
Accounting Services (DFAS) is a separate entity that administers payments and
restores leave. The Agency exercises no control over, nor is the principle of,
DFAS. The Agency will make all reasonable efforts within (45) calendar days
of the date on which the Complainant executed this Agreement to submit to
DFAS any paperwork necessary to process an administrative payment or restore
leave; however, the Agency makes no representation concerning when DFAS
will complete agreed upon payments or leave restoration, if any.
On May 31, 2019, the Agency reissued Complainant a Notice of Proposed Removal (“NOPR”)
that was initially issued on November 19, 2018, but had been held in abeyance during an
investigation. Complainant and his Union Representative provided an oral response on June 12,
2019. Complainant also initiated an EEO complaint (Agency No. 200H03102018104722), seeking
to have both NOPRs rescinded through the EEO dispute resolution process.2 Complainant had
another open EEO complaint (Agency No. 200H03102019101084) regarding, among other things,
a 30-day suspension he served from October 29, 2018 to November 28, 2018.
On June 13, 2019, the Agency’s Labor Relations Specialist (“LRS”) reviewed a draft of Agreement
#1, and saw that Provisions 2(d) and 3(d) appeared “inconsistent with federal law.” Executive
Order 13839 bars agencies from altering or withholding information from a civilian employee’s
official personnel records to resolve a complaint. Provision 2(d) of this earlier draft would have
obligated the Agency to rescind Complainant’s previously served 30-day suspension, and
reimburse him for the lost wages and leave he would have accrued during the suspension. Provision
3(d) concerned payment logistics for Provision 2(d).
2 EEOC Appeal No. 2019004611 (Dec. 3, 2019) (denying Complainant’s June 17, 2019 appeal of
Agency No. 200H03102018104722 citing the waiver language in Agreements #1 and #2.)

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LRS notified the Agency’s EEO Office, Office of General Counsel (“OGC”). She also informed
Complainant 	and 	his 	Union 	Representative, 	who 	had 	negotiated 	the 	draft 	directly 	with
Management, that the agreement needed to be reviewed by OGC. OGC drafted a new version of
the Agreement (“Agreement #2”). The Director of the Agency’s Philadelphia Regional Office
(“Director”) signed Agreement #2 on June 19, 2019. In relevant part, Agreement #2 states:
(3) Should [Complainant]…refuse to sign this Agreement, the decision to remove
[Complainant] will be issued.
On June 20, 2019, the Director, Complainant, and his Union Representative signed the final
version of Agreement #1. 	Complainant’s Union Representative, believing review by OGC was
not required to create a valid settlement agreement under the Collective Bargaining Agreement,
had edited the draft himself. 	He removed Provision 2(d) and reference to Agency No.
200H03102019101084, which was previously included in Provision 1(a), and which Provision
2(d) had been intended to resolve. Though no longer applicable, Provision 3(d) remained in the
final draft of Agreement #1. 	When Agency Counsel learned that the version the parties signed
still contained Provision 3(d) he notified Management that Agreement #1 was not enforceable.
On June 21, 2019, per Agreement #1, Management formally rescinded the May 31, 2019 NOPR.
However, on June 28, 2019, Complainant and his Union Representative were called to a meeting
with LRS, who provided them with a letter from the Director stating that the Agency had rescinded
Agreement #1 because it was “not legally sufficient.” She also provided them with a copy of a
decision issued by the Agency that day on Complainant’s NOPR, determining that Complainant’s
employment would terminate effective July 5, 2019.
During the June 28, 2019 meeting, LRS also provided Complainant and his Union Representative
with Agreement #2, which included a promise by the Agency to rescind the decision upholding
Complainant’s removal in exchange for his compliance with the terms of the agreement (Provision
3). 	Agreement #2 made no reference to DFAS, and Provision 1(a) of Agreement #2 identified
both of Complainant’s pending EEO complaints. Regardless of these differences, the Agency’s
obligations under Agreement #2 were essentially the same as they were under Agreement #1.
Complainant and his Union Representative signed Agreement #2, but state that they did so under
duress.
On July 17, 2019, Complainant contacted the Agency in writing, alleging that it was in breach of
Agreement #1. Specifically, he challenged the legitimacy of the Agency’s unilateral rescission of
Agreement #1. He requested that the Agency comply with Agreement #1, and void Agreement #2,
alleging that it did not meet Agency and ORM requirements, and that he had entered it under
duress. Complainant also appears to argue that Agreement #1 does not preclude him from pursuing
Agency No. 200H03102019101084.
The FAD concluded that the Agency erred when it attempted to rescind Agreement #1, and that
Agreement #1 was a valid and enforceable settlement agreement.

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The FAD also found the Agency had complied with Agreement #1’s provisions, and that by
entering into Agreement #1, Complainant waived his right to further pursue all EEO complaints
that were pending at the time he entered into the agreement. 3
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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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);
Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
Once a settlement agreement is entered into by the parties, one party may not unilaterally rescind
the agreement. See Ford v. United States Postal Serv., EEOC Appeal No. 01A30264 (Oct. 7, 2003).
Thus the Agency’s June 28, 2019 letter rescinding Agreement #1 had no impact on the validity
and enforceability of Agreement #1.
With respect to Agreement #2, there are instances when an otherwise valid agreement may be void,
voidable, 	or 	re-formable, 	depending 	on 	circumstances, 	for 	example 	due 	to 	coercion,
misinterpretation, or mistake. See Nemirow v. Dep’t of the Army, EEOC Appeal No. 01930062
(Dec. 8, 1992). Complainant alleges that he was coerced into signing Agreement #2, and that the
Agency acted in bad faith by rescinding Agreement #1. Both parties entered Agreement #2 based
on a mistaken understanding that Agreement #1 was invalid.
3 The Complaint File contains an August 16, 2019 opposition brief issued by the Agency, arguing
to uphold Agreement #2, which it refers to as the “June 19, 2019 Agreement” based on the date
the Director signed it, as opposed to June 28, 2019, the date it was executed. For reasons described
herein, and in the FAD, the rationale that Agreement #2 was a necessary “corrective action” due
to the “obviously illegal” DFAS provision in Agreement #1, is an erroneous interpretation of
EEOC precedent and contract law. On January 27, 2020, the Agency submitted a statement to the
Commission clarifying that its position was consistent with the FAD, and describing Agreement
#2, which it referred to as the “June 28, 2019 Agreement” as “irrelevant.”

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The DFAS language in Provision 3(d) of Agreement #1 has not rendered Agreement #1 void.
Provision 4(h) of Agreement #1 allows that in an instance where one provision is found
unenforceable, “such unenforceability shall not affect any other provisions…and the remaining
terms shall, unless prohibited by law, remain effective as if such unenforceable provision(s) were
never contained therein.” Both parties agree that Provision 3(d) is unenforceable because it does
not apply to the rest of Agreement #1, which lacks any remuneration payment to Complainant.
The FAD properly re-formed Agreement #1 to omit Provision 3(d), and deemed the remaining
provisions valid and enforceable.
We find that the parties revoked Agreement #1 when they “knowingly and voluntarily” entered
Agreement #2 on June 28, 2019. Provision 9 of Agreement #2 stipulates that it “shall supersede
all…agreements between [Complainant and the Agency] with respect to the subject matter hereof.”
Agreement #2 addressed the same underlying complaint as Agreement #1, therefore it supersedes
Agreement #1.
However, the record contains written statements of the parties establishing that they both want to
revoke Agreement #2 and revive Agreement #1. We find this mutual revocation sufficient to void
Agreement #2. Without Agreement #2 superseding it, Agreement #1 is valid and enforceable
(aside from Provision 3(d)).
We are not convinced by Complainant’s argument that Agreement #2 should be void because he
entered it under duress. By Complainant’s account, LRS provided no explanation for rescinding
Agreement #1, and when LRS provided him with Agreement #2, with an ultimatum, “sign or be
fired” citing Provision 3 of Agreement #2. Complainant also states that he had only a few hours
to make a decision, and the Agency refused to negotiate or answer questions. Regardless,
Complainant has not shown that he was coerced, as he had the opportunity to consult with his
Union Representative before entering Agreement #2, and was aware that he did not have to enter
Agreement #2. There is also no evidence that Complainant was harmed as a result of entering
Agreement #2, as it required the parties to provide essentially the same consideration as Agreement
#1.
We also find no evidence to support Complainant’s allegation that the Agency acted in bad faith
when it attempted to rescind Agreement #1, and presented him with Agreement #2. The email
communications of Agency Counsel and LRS, as well as the Agency’s August 16, 2019
Opposition Brief, demonstrate that the Agency operated under the erroneous belief that Agreement
#1 was unenforceable when it presented Complainant with Agreement #2. (As this did not
materially impact the outcome of Agreement #1, we do not find Agreement #2 void due to mutual
mistake.) Moreover, the record includes documentation of the Agency’s timely compliance with
all of its obligations under Agreement #1.
To the extent Complainant is arguing that because Agency No. 200H03102019101084 is not
expressly identified in Agreement #1, he can continue to pursue the matter through the EEO
process, such interpretation should have been reduced to writing as part of the settlement
agreement, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. Gen. Servs.

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Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). Provision 1(a) of Agreement #1 specifies
that Complainant was to withdraw “all other claims…in any stage of processing in their entirety.”
Alternately, Provision 1(b) of Agreement #1 bars Complainant from further pursuing Agency No.
200H03102019101084, because it arises from events that occurred before Agreement #1 was
executed on June 20, 2019.
CONCLUSION
Accordingly, the Agency's finding that it was not in breach of the Agreement is AFFIRMED.
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).

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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. 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
September 9, 2020
Date