EEOC Appeal 2020000673

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Enriqueta T.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 202000673
Agency No. ARMEADE18MAY01592
DECISION
On August 24, 2020, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) regarding the alleged breach of an April 27, 2020 settlement
agreement. The record reflects that, although she notified the Agency official with settlement
authority and Agency counsel, Complainant did not inform the EEO Director in writing as required
by the agreement and 29 C.F.R. § 1614.504(a). No final decision by the Agency has been issued.
Nevertheless, the Agency has submitted a response to the appeal contending that it has complied
with the settlement terms. Therefore, in the interest of judicial economy and expediency, we shall
construe the Agency's response as its final decision and accept the appeal. See 29 C.F.R. §
1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
During the relevant time, Complainant was a Supervisory Health System Specialist, at the
Agency’s Kimbrough Ambulatory Care Center in Fort Meade, Maryland. Believing that the
Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO
Counselor to initiate the EEO complaint process.
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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On April 27, 2020, Complainant and the Agency entered into a settlement agreement to resolve
the matter. The settlement agreement provided, in pertinent part, that the Agency agreed:
8. a. 	That Complainant’s resignation from her position with the Agency will be
processed in the manner prescribed by regulation and consistent with this
Agreement, and will not reflect or suggest that there has been a basis for an
involuntary termination of her employment.
8. b. 	That Agency will pay $35,000 (the “Settlement Sum”) to Complainant
inclusive of any attorney fees incurred pursuing the claims and the complaint
responding to or appealing any proposed or completed personnel actions, and
any other matter on Complainant’s behalf. Within thirty (20) calendar days2
of the conclusion of the revocation period, 8 days after the effective date of
this Agreement, the local offices will have completed their responsibilities to
get the Settlement Sum promptly paid, in gross, with no withholdings or
deductions, by electronic funds transfer directed to an account designated by
Complainant. 	The Complainant agrees to complete reasonably necessary
documentation, including but not limited to an “ACH” Form which the Army
will provide to Complainant, to permit the Army to make an electronic funds
transfer of the Settlement Sum into the account designated by Complainant.
By email to the Agency signatory and Agency counsel, dated June 9, 2020, Complainant stated
“We are fast approaching the 45th day and I have not received the funds as agreed . . . .”
Approximately two weeks later, on June 22, 2020, Complainant again emailed Agency counsel.
She explained that the ACH Form had been provided and noted “[t]oday is the 53rd day. The
Agency has not complied. . . .” In response, Agency counsel stated “I received it. I have not begun
to get through emails from the last two weeks, during which I conducted a trial . . . .” On July 2,
2020, Complainant informed Agency counsel that she still had not received payment. 	After
receiving no response from Agency counsel, Complainant filed the instant appeal.
On appeal, Complainant argues that, despite her calls and emails to the Agency, she has not
received payment as required by the April 27, 2020 agreement. Due to the Agency’s “repeated
disregard of all my inquiries”, Complainant appealed to the Commission. She requests not only
payment of $35,000, pursuant to the agreement terms, but also $7,000 for the Agency’s breach.
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).
2 Inconsistency between written date and parenthetical number is in the original.

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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 (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, the Agency was required to provide payment to Complainant by June 4, 2020.3
The Agency, however, has submitted a copy of an electronic record reflecting payment of $35,000
to Complainant “clearing 9/14/20.” The Agency’s delay, of 102 days, was three times as long as
required by the agreement. Therefore, we agree with Complainant that a breach occurred when
payment was not completed by the time specified. However, the Agency’s subsequent payment
has cured such breach. Complainant acknowledges receipt of the funds, but reiterates her request
for $7,000 for the Agency’s delay. 	We do not find such award is warranted here where
Complainant failure to allege breach, in writing, with the Agency’s Director EEO Compliance and
Complaints Review may have contributed to the delay. This requirement was explicitly stated in
the agreement. Consequently, we find that the Agency is in compliance with the April 27, 2020
settlement agreement.
CONCLUSION
The Agency’s determination, finding no breach of the April 27, 2020 settlement agreement, is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision.
3 The agreement was executed on April 27, 2020. The compliance deadline reflects the addition
of 8 days to revoke and 30 days to take the actions in provision 8.b.

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If the party requesting reconsideration elects to file a statement or brief in support of the request,
that statement or brief must be filed together with the request for reconsideration. A party
shall have twenty (20) calendar days from receipt of another party’s request for reconsideration
within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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.

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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
October 28, 2020
Date