EEOC Appeal 2020001547

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ervin P.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 2020001547
Agency No. BOP-2019-0520
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision by the Agency dated November 22, 2019, 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 Senior Officer, GS-
07, at the Agency’s Federal Correctional Complex in Florence, Colorado. 	On June 13, 2019,
Complainant filed a formal complaint wherein he claimed that he had been discriminated against
on the bases of his race (Asian) and in reprisal for his prior protected EEO activity. On July 1,
2019, Complainant and the Agency entered into a settlement agreement to resolve the matter. The
settlement agreement provided, in pertinent part, that:
(1) The rater for [Complainant] at FCC Florence will be changed from his current rater to
[the Lieutenant] before August 1, 2019.
(2) [The Captain] agrees to become a career mentor for [Complainant] at FCC Florence.
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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In its November 22, 2019 final decision, the Agency responded to Complainant’s claim that it
breached the aforementioned provisions of the settlement agreement. The Agency determined that
it had not breached the settlement agreement. With respect to the first provision, the Agency stated
that the Associate Warden confirmed that the Lieutenant was assigned to serve as Complainant’s
rater on July 1, 2019. 	The Agency noted the email dated August 29, 2019, referenced by
Complainant, wherein the Lieutenant indicated that he would officially assume the duties of
serving as Complainant’s rater at a future date. The Agency stated that the Lieutenant explained
that he was unaware of the settlement agreement when he wrote the email, but that he confirmed
he has been serving as Complainant’s rater since July 1, 2019.
As for the settlement agreement’s second provision, the Agency stated that in a memorandum
dated November 18, 2019, the Captain confirmed that since the date of the mediation, he has
willingly accepted a role serving as Complainant’s mentor and has met with him on several
occasions to discuss his career goals within the Agency. 	According to the Captain, since
Complainant’s return from the Administrative Maximum to the United States Penitentiary, he has
seen Complainant at least weekly, during rounds in K-unit, during which he inquired if
Complainant needed anything from him. The Captain asserted that he provided Complainant with
a promotable skills timeline and Complainant completed most of the training. 	As a result, the
Agency found that it had complied with the settlement agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that although the Agency states that the Lieutenant was
appointed as his rater of record, the Lieutenant has not performed any substantive duties as his
rater. 	Complainant maintains that when he has requested assistance or guidance from the
Lieutenant, the Lieutenant has not acted as his rater and has made comments suggesting that he
did not know he was supposed to be his rater of record as of July 1, 2019. Complainant states that
he did not see the Lieutenant for any reason from March 17, 2019, to September 9, 2019.
According to Complainant, he emailed the Lieutenant on three occasions, but did not receive a
substantive response. Complainant states that the Captain acknowledged it is his fault that he did
not set a timeframe for the Lieutenant to start acting as Complainant’s rater of record. Complainant
argues that the Agency failed to timely issue him the three-month performance evaluations, and
that it has negatively affected his ability to be selected for promotions, cash awards, or performance
awards.
ANALYSIS AND FINDINGS
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).

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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. U.S. 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).
In the instant case, the first provision of the settlement agreement provides that “The rater for
[Complainant] at FCC Florence will be changed from his current rater to [the Lieutenant] before
August 1, 2019.” It is evident that communication among the relevant management officials was
deficient as to this aspect of the settlement agreement. As reflected in his August 29, 2019 email
to Complainant, the Lieutenant may not have been aware at that time that he was Complainant’s
rater of record as the Lieutenant stated in the email he would officially assume the duties of serving
as Complainant’s rater at a future date. 	The record indicates that the Lieutenant was in fact
Complainant’s rater of record as of July 1, 2019, and that the Lieutenant was informed of this early
in September 2019. 	We note in a letter dated November 16, 2019, from the Lieutenant to the
Captain, the Lieutenant stated that he completed Complainant’s 2nd Quarter Log Entry and
Progress Review on September 26, 2019, at which point Complainant signed both documents. The
Lieutenant further stated that he made Complainant aware of the standards he would be rated on
for the entire year. 	While the Agency’s implementation of this provision settlement agreement
was flawed, we find that the sequence of events does not indicate that a breach occurred.
Moreover, to the extent that a breach did occur, we find that the Agency has cured any such breach
by informing the Lieutenant that he is Complainant’s rater of record, and by the Lieutenant acting
in that capacity.
As for the second provision of the settlement agreement, we observe that Complainant does not
present any substantive argument on appeal alleging breach. We discern no evidence in the record
indicating that a breach of the second term occurred.
CONCLUSION
The Agency’s determination that no breach of the settlement agreement occurred is AFFIRMED.

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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 (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.

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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 10, 2020
Date