0120113316
11-15-2012
Jodi E. Silberman, Complainant, v. Hilda L. Solis, Secretary, Department of Labor (Employment Standards Administration), Agency.
Jodi E. Silberman,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor
(Employment Standards Administration),
Agency.
Appeal No. 0120113316
Agency Nos. CRC 07-05-068; 09-05-024 and 10-5-059
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 8, 2011, 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 an Equal Opportunity Specialist at the Agency's Employment Standards Administration Office of Federal Contract Compliance Programs facility in Chicago, Illinois.
On October 29, 2010, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced matters which had been consolidated and pending before an EEOC Administrative Judge (AJ) in EEOC No.. 440-2008-00172X, 440-2009-00185X and 440-2011-00004X. The settlement agreement provided, in pertinent part, that:
(1b) [Complainant] and the Agency desire to settle fully and finally all EEO claims [Complainant] has or may have arising out of or related to the EEO claims including the subject matter of same on the terms and conditions set forth herein. However, the parties agree that to the extent [Complainant] has an otherwise viable EEO claim in either grievance / FLRA [process] concerning her 14-day suspension. . . or the MSPB matter concerning her 30-day suspension, this settlement agreement does not cover any such claim.
(2a) The Agency shall pay the gross amount of $17,500 in full and final settlement of the released matters in Paragraphs 2b, 3b, 3c, 3d and 3e;
(2b) The Agency shall restore to [Complainant] four hours of annual leave;
4b) This Agreement represents the full Agreement between [Complainant] and the Agency; and
(4c) No provision of this Agreement shall be modified or construed by any practice that is inconsistent with such provision: and the Agency
The AJ entered an order of dismissal on November 4, 2010 based on the approved settlement agreement that the AJ reviewed.
By email and letter to the Agency, dated May 1, 2011 and May 8, 2011, Complainant alleged that the Agency was in breach of the settlement agreement when the Agency issued Complainant an April 29, 2011 Proposal for Removal. She claimed the action was unlawfully based on CRC Case No. 10-05-059 that was settled.1
The record shows that the proposed notice to remove was based on five separate events that occurred on January 7, 2011, January 11, 2011, March 18, 2011, March 24, 2011 and March 25, 2011, respectively. Further, the record indicates that Complainant has provided the Agency with notice of her new allegations; and the Agency assigned a different Agency case number (CRC Case No. IM 11-05-157) pertinent to her claims that the subsequent action (proposed removal) was a prohibited employment action, violated the Privacy Act or the Agency's policies.
On appeal, Complainant did not identify any specific provision of the settlement agreement that she believed was breached and did not seek reinstatement of the underlying complaints. Complainant requested "that the Agency investigate whether the April 29, 2011 Proposal for Removal from Federal Service is a prohibited personnel practice." Complainant also contends that the Agency violated the Privacy Act and its own National Agreement.
In its June 8, 2011 final decision, the Agency concluded that it was in compliance with a plain reading of the Agreement and that Complainant's documentation did not support Complainant's allegation of a breach. The Agency reasoned that it complied with the obligation for a monetary payment and restoration of four hours of annual leave. In addition, the Agency stated that Complainant's allegation regarding the proposed notice of removal was being processed as a separate complaint of discrimination, under a different assigned agency number.
ANALYSIS AND FINDING
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).
In the instant case, Complainant acknowledges that the Agency provided her the monetary relief and the restoration of annual leave referenced in the agreement. Nevertheless, Complainant argues that the Agency breached the agreement when it failed to expunge its record of all references to her prior history, particularly Agency Number 10-05-059, which pertained to a January 15, 2010 letter to Complainant. She also argues that the Agency breached the Agreement by failing to isolate her employment record and improperly based the proposed removal on matters that were resolved through the 2010 settlement agreement. We find that the record does not support Complainant's allegations for the following reasons.
First, the agreement did not obligate the Agency to expunge her record or to establish separate confidential files. It also does not cover "otherwise viable EEO claims" such as those that occurred after the date of the signing of the agreement.
Second, the proposed notice to remove was supported by incidents that occurred after the signing of the settlement agreement. Consequently, these are not the same incidents or specifications which were resolved through the October 29, 2010 settlement agreement.
Finally, the record reflects that the Agency provided Complainant with the relief promised in the October 29, 2010 agreement. To the extent that Complainant wishes to raise her new issues with the Agency, we find that any post-agreement allegations are not before us. The record supports the Agency's finding of compliance.
For these reasons, we affirm the Agency's final decision, finding no breach.
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), at 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 (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 (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
November 15, 2012
__________________
Date
1 The allegation that was settled in CRC Case No. 10-05-059 pertained to a January 2010 letter and pre-dated the settlement agreement.
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0120113316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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