0120142377
12-11-2014
Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120142377
Agency No. HHS-OS-0017-2009
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 1, 2013, 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 for the Agency in Washington, DC.
On April 1, 2009, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2a) [The Agency agrees to . . .] Change [Complainant's] FY 2008 rating to Exceptional. Amend personnel record to reflect the Exceptional rating for FY 2008. Any reference to [Complainant] receiving an Unsuccessful rating for FY 2008, the performance improvement plan, progress review, rater's narrative, higher level review, performance review board recommendations, notices communicating her removal from the SES, and any statement of ineligibility for reinstatement to the SES based on those notices will be expunged from her personnel records.
. . .
(5) All parties to this Settlement Agreement agree, to the extent permitted by law, that the terms and conditions of this Settlement Agreement, including all related correspondence and documents, the identity of the parties, and the facts surrounding the settlement of the above-captioned complaint are to be deemed confidential and are not to be discussed with anyone, with the following exceptions: Disclosures required by law or lawful court order, disclosures made by the Agency pursuant to the Privacy Act. . . and disclosures made by the parties for the limited purpose of implementing or enforcing the terms of the agreement.
. . .
(7) The parties agree that, "should the complainant believe that the Agency has failed to fully comply with the terms and conditions set forth in this Settlement Agreement, the provisions outlined in 29 C.F.R. � 1614.504 shall govern the settled EEO complaint.
. . .
(10) This Settlement Agreement contains the entire understanding between the parties and there are no other terms express or implied. The terms and conditions of this Settlement Agreement are contained exclusively within this Agreement and have been voluntarily agreed upon by the parties after consultation with their respective counsel.
The record shows that the Agency changed Complainant's FY 2008 rating to "Exceptional" and amended her personnel records to reflect the "Exceptional" rating. In addition, the Agency entered a code in Box Number 29 on several Notices of Personnel Actions (SF-50s), which read "R Retained Pay - SES Removal." This SF-50 code shows the Pay Rate for an employee following the employee's removal from the Senior Executive Service (SES). The code refers to "a former SES career employee who is receiving a retained rate of pay" following removal.
On September 29, 2011, Complainant notified the EEO Director by letter that she believed the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to abide by provisions 2 and 5, after she became aware that the Agency had included a reference to her removal from the SES in each of the subsequent SF-Form 50 documents it issued pertinent to Complainant. Complainant referenced a SF-50 document which was effective on March 27, 2011. Complainant also referenced subsequent emails dated January 2, 2012, February 1, 2012, June 4, 2012, July 29, 2012 and October 3, 2012 to support her claim of breach and ongoing discrimination and retaliation. Complainant requested that the references to the "SES Removal" be removed from her personnel records.
Agency's Breach Determination
In its March 1, 2013 FAD, the Agency concluded that it had not breached the settlement agreement. The Agency reasoned that the "entry on the SF-50 does not constitute a notice." The Agency stated, "it is arguable whether an SF-50 constitutes the type of notice contemplated by the use of the term 'notice' in Complainant's Settlement Agreement simply because the official title of the SF-50 is 'Notice of Personnel Action.'" The Agency found that it was "reasonable to conclude that the use of the phrase "notice" in the Agreement was not intended to apply to the SF-50 or other necessary administrative forms completed in compliance with relevant statutes and/or regulations."
Next, the Agency found that its actions were necessitated by the requirements of the Office of Personnel Management (OPM), which "mandates the use of the administrative code for the "save pay" provision, not the Agency." In addition, the Agency dismissed the claims. The Agency found that Complainant failed to notify the Agency within 30 days. The Agency found that "it should not be required to accept a complaint if it fails to allege that the complainant suffered a direct personal harm, or that the agency's actions adversely affected the complainant's employment status." The Agency concluded that the fact that Complainant was issued a cash award and retained her SES salary "all strongly mitigate against a finding that the Agency breached the Agreement or took any adverse actions with respect to Complainant's subsequent removal from the SES."
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 the Agreement was valid and binding on both parties.
On appeal, Complainant contends that there was a breach because the Agency issued Notices of Personnel Actions (SF-50s) communicating her removal from the SES, which is inconsistent with paragraph two that restricts "notices communicating her removal from the SES" and insistent with the confidentiality provisions contained in paragraph 5.
In the instant case, we find that the Agency has not met its burden of showing that the issuance of an SF-50 in Complainant's personnel records which included the removal reference was consistent with the terms of the Agreement. It is not for us to construe the meaning or intention of the Agreement or its terms. Consequently, the plain meaning of provision 2(a) of the settlement agreement supports Complainant's claim. Therefore, we find that the Agency breached the agreement when Complainant's notices of personnel actions continued to communicate her "removal from the SES" in her personnel records.
Where this Commission finds that the settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. � 1614.504 (c). Complainant did not specify in her notice of breach or in her statement on appeal which remedy was preferred. We therefore give Complainant the option, in accordance with the ORDER below, of either reinstating his underlying EEO complaint, or specifically enforcing the terms of the Agreement.
To the extent that Complainant wishes to address new claims of discrimination and/or retaliation, she should initiate EEO counseling with the Agency as those claims must be addressed in a separate complaint.
CONCLUSION
We find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's Breach Decision and REMAND the matter in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice within which to notify the Agency either that she wishes to return to the status quo prior to the signing of the agreement or that she wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, she must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the non-disclosure provisions.
If Complainant elects to reinstate her EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process 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 claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 11, 2014
__________________
Date
2
0120142377
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142377