0120071387
04-26-2007
Marissa Law-Casey, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Marissa Law-Casey,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120071387
Agency No. FWS-02-021R2
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 15, 2006, finding that it
was in compliance with the terms of the February 21, 2003 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.
The settlement agreement provided, in pertinent part, that:
(1) The agency agrees to expunge from complainant's Official
Personnel File (OPF) any negative or derogatory comments contained in
documents in complainant's OPF relative to her removal action. In this
regard the agency agrees to remove the SF-50 indicating removal from
complainant's OPF and substitute same with a new SF-50 indicating the
voluntary resignation of the complainant for personal reasons from the
agency effective May 15, 2002.
By letter to the agency dated October 11, 2006, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to keep the removal action from her OPF.
Complainant indicated that she applied for a position with another
federal agency. During the interview, the interviewing official asked
complainant if she had been terminated from employment with the Federal
Government. Complainant was told that the interviewing agency was aware
of her termination and that they were in possession of the termination
letter from 2002. Therefore, complainant asserted that the agency had
not expunged the removal action from her OPF.
In its December 15, 2006 FAD, the agency indicated that following
complainant's notification of the breach, it expunged any negative or
derogatory comments from complainant's OPF and a new SF-50 was prepared
stating that complainant resigned from her position. Therefore, the
agency found that it implemented the terms of the settlement agreement.
ANALSYS 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. Department of Defense,
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. Department 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. United States Postal
Service, 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, we find that the agency did not implement the
terms of the settlement agreement until complainant notified them of the
situation. Therefore we find that the agency breached the settlement
agreement. Accordingly, we VACATE the agency's decision, and REMAND
this case to the agency with the ORDER to provide complainant with the
option of either reinstating her complaint or specific performance of
the settlement agreement on the part of the agency.1
In addition, we note that the release of the removal action to the other
agency constitutes a new claim of unlawful retaliation. Therefore, if
complainant wishes to pursue this claim of unlawful retaliation, she is
directed to bring this new claim to the attention of an EEO Counselor
within 15 days after she receives this decision. If complainant seeks
EEO counseling regarding this new claim within the above 15 day period,
October 11, 2006, the date complainant wrote to the agency regarding the
release of the information to other federal agency, shall be deemed the
date of initial EEO contact.
ORDER
The agency is ORDERED to notify complainant of her option to reinstate the
complaint, or having the terms of the agreement specifically enforced
by ensuring that the OPF is expunged of any negative or derogatory
comments contained in documents in complainant's OPF relative to her
removal action. The agency shall so notify complainant within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall also notify the 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 of her choice.
A copy of the agency's notice to the complainant regarding her options,
as well as a copy of either the correspondence reinstating the complaint
for processing or the correspondence notifying the complainant that the
terms of the agreement will be specifically enforced, must be sent to
the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
April 26, 2007
__________________
Date
1 We remind complainant that if she chooses to reinstate her complaint,
the settlement agreement will be void and any money she received pursuant
to the settlement agreement would have to be returned to the agency.
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0120071387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071387