EEOC Appeal 2020000862

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sandy S,1
Complainant,
v.
Ryan D, McCarthy,
Acting Secretary
U.S. Department of the Army
Agency.
Appeal No. 2020000862
Agency No. ARCCAD18JUN02286
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated September 9, 2019, finding that
it was not in compliance with the terms of the settlement agreement into which the parties entered,
but dismissing the compliance action for untimeliness. 	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 compliance action, Complainant worked as an Electronics
Worker, WG-2604-08, at the Agency’s Corpus Christi Army Depot (CCAD) Directorate of
Accessories and Rotor Blade Production (DARB), Electronics Division, Avionics Branch P61D2
facility in Corpus Christi, Texas.
On July 11, 2018, Complainant and the Agency entered into a settlement agreement to resolve the
above-referenced EEO pre-complaint matter. The settlement agreement provided, in pertinent part,
that, in consideration for this Agreement, the Agency agrees:
(3a) 	Within thirty (30) days after the date of this Agreement, the Agency will
provide 	a 	mentor 	to 	Complainant 	from 	outside 	the 	Directorate 	of
Accessories 	and 	Rotor 	Blade 	Production…The 	mentor 	will 	assist
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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Complainant 	with 	resume 	and 	interviewing 	skills 	and 	will 	provide
Complainant assistance with registering with no-cost online professional
training…This mentor assistance will continue for one hundred eighty (180)
days initially, and can be extended at the Director’s discretion after a request
by Complainant.
(3b) 	Within ninety (90) days after the date of this Agreement, the Agency will
nominate Complainant for a temporary detail (30-60 days) to the PSA work
center within the Directorate of Accessories & Rotor Blade Production.
(3c) 	Within 	sixty 	(60) 	days 	after 	the 	date 	of 	Complainant’s 	successful
completion of the temporary detail (30-60 days) to the PSA work center as
referenced above, the Agency will nominate Complainant for additional
duty as a limited duty Quality Control (QC) Inspector.
(3d) 	When requested by Complainant to the Director, the Agency will reassign
Complainant within the Directorate of Accessories and Rotor Blade
Production to a different supervisor other than [the named supervisor.] This
reassignment will continue for at least one (1) year and may be preserved
longer at the Director’s discretion. If Complainant’s first such request for
reassignment is made later than one (1) year after the date of this
Agreement, any reassignment will be at the Director’s discretion.
. . .
(7) 	If the Complainant believes that the Agency has failed to comply with the
terms of this Agreement for any reason not attributable to acts, omissions
or conduct of the Complainant, the Complainant shall notify the Agency in
writing 	of 	the 	alleged 	noncompliance 	within 	30 	days 	of 	when 	the
Complainant knew or should have known of the alleged noncompliance.
The record shows, regarding provision 3a, that in late July or early August, the Director notified
Complainant that a mentor had been identified and asked the mentor to contact Complainant. The
mentor was from outside Complainant’s division. Complainant did not notify management of any
issue pertaining to the mentor, but the record does not show that Complainant received the benefit
of 180 days of mentoring.
Regarding provision 3b, the Director coordinated with the PSA Branch Chief for Complainant to
shadow two PSA examiners for 30 days, but the Agency acknowledged that it did not nominate
Complainant for a detail to the PSA Center or duty as a limited duty Quality Control (QC)
Inspector. The Agency reasoned that Complainant did not meet the minimum requirements for
being a journeyman to fill an official detail.

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Regarding provision 3c, the Agency provided Complainant training (limited duty Quality Control
(QC) Inspector training), but the Agency did not nominate Complainant for additional duty. The
Agency determined that Complainant did not meet the minimum requirements for being a
journeyman.
Regarding provision 3d, the Agency stated that it met its obligation, because Complainant never
requested reassignment from the Director.
By letter to the Agency dated July 31, 2019, Complainant alleged that the Agency was in breach
of the settlement agreement, provisions 3a through 3d. Specifically, Complainant alleged that the
Agency failed to provide mentor assistance for 180 days, failed to nominate him for a temporary
detail, failed to nominate him for additional duty as a limited duty Quality Control (QC) Inspector,
and did not reassign him to a different supervisor, as specified in provision 3d. Complainant stated
that he believes the Agency negotiated the Agreement in bad faith. He requested that the Agency
reinstate his complaint from the point where processing ceased.
In its determination decision, the Agency acknowledged that the Activity did not place
Complainant on an official detail, as required in provision 3b, and failed to meet the requirement
of provision 3c. Therefore, the 	Agency found that the Activity breached the terms of the
settlement, but the Agency concluded “no remedial relief was warranted.” 	Instead, the Agency
stated, “Complainant’s breach claim is dismissed,” due to untimely filing. The Agency reasoned
that Complainant failed to timely notify the Agency of his breach claims.
This appeal followed.
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).
We find that the Agreement is valid and binding on both parties. Further, we are not persuaded
that this compliance action should be dismissed for untimeliness.

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In the instant case, the Agreement required that the Agency provide 180 days of mentoring,
nominate him for a detail, and nominate him for additional duty. The Agency acknowledged that
it failed to comply with the terms of the Agreement.
The Agreement did not state that Complainant must meet eligibility standards before he could be
detailed or given additional duties. 	The Agreement did not permit the Agency to avoid its
obligations, if it determined that Complainant was ineligible to be nominated or given additional
duty. We also note that the Agency was aware of Complainant’s qualifications when it agreed to
the terms of the Agreement.
We find therefore that Complainant has substantiated his claim that the Agency breached the
settlement agreement.
When we find a breach, we generally have two options. One is to order specific performance. The
other is to reinstate the complaint for continued processing. 	In this case, Complainant has
expressly requested reinstatement of his complaint [ARCCAD18JUN02286]. 	Inasmuch as the
Agreement did not provide Complainant with any monetary compensation, there are no funds to
be returned prior to the reinstatement of his complaint.
We grant Complainant’s request for reinstatement of the underlying complaint for continued
processing.
CONCLUSION
Accordingly, we REVERSE the Agency’s Determination. We REMAND the matter to the Agency
for action consistent with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to reinstate the underlying complaint (Agency No. ARCCAD18JUN02286)
and resume processing of the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq.
The Agency shall acknowledge to the Complainant that it has received the remanded complaint
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. 	If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s

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request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
ATTORNEY’S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
he is entitled to an award of reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency - - not to the Equal Employment
Opportunity Commission, Office of Federal Operations - - within thirty (30) calendar days of the
date this decision is issued. 	The Agency shall then process the claim for attorney’s fees in
accordance with 29 C.F.R. §1614.501.2
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
2 We note that the Agreement only waived attorney’s fees incurred prior to the execution of this
Agreement. Complainant retained his ability to bring claims that arise after the Agreement by
reason of the alleged breach of any terms of this settlement agreement. He did not waive any rights
or claims to recovery of costs to which he is entitled, except as expressly provided in the terms of
this Agreement. 	We find, therefore, that he is entitled to recover reasonable attorney’s fees for
this successful breach claim.

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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 (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.

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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2020
Date