01A31889_r
02-26-2004
Nathan Whatley, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Nathan Whatley v. Department of Agriculture
01A31889
February 26, 2004
.
Nathan Whatley,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A31889
Agency Nos. 010036
010194
010536
010681
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 26, 2002, finding that
it was in compliance with the terms of an October 19, 1999 settlement
agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405.
The October 19, 1999 settlement agreement provided, in pertinent part,
that:
Both Complainant and the Agency agree:
a. To respect the privacy rights of all individuals involved in the
matter. The terms of this agreement are to remain confidential and not be
publicized or communicated to other persons without the express written
consent of the Complainant and the Agency; provided, further, that the
Agency and the Complainant may disclose the terms of this agreement to
those who need to know the contents of this agreement in the performance
of their official duties. The fact that the case was voluntarily resolved
in a manner acceptable to both parties may be communicated to others.
..........
e. The Agency will not, through word or action, intimidate, threaten,
coerce, or otherwise engage in reprisal against the Complainant or
any other individuals who participated in this resolution agreement.
However, this shall not preclude the Agency from investigating or taking
appropriate disciplinary or corrective action relating to allegations
raised by the Complainant. Any claims of reprisal for Agency actions will
not reopen the matters covered by this complaint, but will be considered
a new complaint if properly raised by the Complainant or others affected
in the EEO complaint process.<1>
A fair reading of the record reflects that by letter to the agency dated
March 9, 2001, complainant claimed that the agency breached provisions
(a) and (e) of the settlement agreement, when terms of the settlement
agreement were improperly disclosed by the agency. <2> Specifically,
complainant claimed that prior to his reassignment from California to
Arkansas, an Arkansas supervisor negatively discussed his reassignment
and the terms of the settlement agreement with other supervisors and
employees. Complainant further claimed that the purpose of sharing the
information was to label him as a troublemaker. Furthermore, the agency
noted that complainant provided telephone numbers of other agency Law
Enforcement Officers including his supervisor with whom this negative
information was shared.
In its December 26, 2002 FAD, the agency concluded that it was not in
breach of provisions (a) and (e) of the October 19, 1999 settlement
agreement. Regarding provision (a), the agency found that it provided
copies of letters of instruction to three supervisors, which stated in
pertinent part, to "refer any reference calls concerning the complainant
to Personnel (HR)..." The agency found that the letters of instructions
to three supervisors stressed the importance of information concerning
complainant and issues involved in this case shall remain confidential
and will not be publicized or communicated �to other persons without
express written consent of the complainant and/or this office.� The
agency noted that the three supervisors and the Human Resources official
fell in the category of parties �who needed to know in order to carry
out their official duties . . .�
Regarding provision (e), the agency stated that the Special Agent
in charge, after writing the letters, made conference calls with the
supervisors reminding them that they were not to engage in any action
towards complainant that might be perceived as reprisal.
On appeal, complainant through his counsel, contends that the agency's
claim that the three unidentified supervisors and an unidentified Human
Resources official had a need to know the terms of the agreement in order
to carry out their officials, is without merit. Complainant further
argues that the unidentified supervisors and Human Resources officials
breached the agreement when the details of complainant's reassignment
were discussed during an event that included law enforcement officials
of various federal agencies, and the Arkansas State Game and Fish agency.
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).
Provision (a)
With respect to provision (a), the Commission determines that the record
in this case contains insufficient evidence for us to determine whether
or not the agency breached this provision. We note, for example, that
the agency's finding of no breach is predicated upon the assertion of
a Special Agent who purportedly sent letters of instructions to three
supervisors, which stated in pertinent part that the supervisors were to
refer any reference calls concerning complainant to a Human Resources
Official, and that the three supervisors and the Human Resources
official were under the category of �those who needed to know in order
to carry out their official duties. . . � However, the record contains
no documentation ( such as the letters of instructions and statements
or affidavits from the Special Agent, the three supervisors, or the
Human Resources official), indicating whether the agency purportedly
fulfilled the obligations under provision (a) of the settlement agreement.
Given this lack of evidence, we are unable to ascertain whether the
agency complied with provision (a) of the settlement agreement.
Provision (e)
With respect to provision (e), a fair reading of the record reflects that
complainant contends that he was subjected to reprisal when the terms
of the agreement were disclosed by the agency. Pursuant to 29 C.F.R. �
1614.504(c), allegations that subsequent acts of discrimination violate
the settlement agreement must be processed as a separate complaint.
Nevertheless, we determine that complainant's allegation that he was
subjected to retaliation when provision (a) was purportedly breached
does not state a separate processable claim. Therefore, the Commission
AFFIRMS the agency's finding of no breach of provision (e).
In summary, the agency's finding of no breach of provision (e) of the
settlement agreement is AFFIRMED. The agency's finding of no breach
of provision (a) of the settlement agreement is VACATED. This matter
is REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with any evidence clearly showing
whether it has complied with provision (a) of the October 19, 1999
settlement agreement. The supplementation of the record shall include
any relevant personnel documentation, for example, copies of the letters
of instructions identified in the agency's final decision. Within thirty
(30) calendar days of the date this decision becomes final, the agency
shall issue a new decision concerning whether it breached provision (a)
of the October 19, 1999 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
February 26, 2004
__________________
Date
1The settlement agreement also provides that
complainant would be reassigned to Region 8, Ozark National Forest,
Boston Mountain Ranger District, to a GS-1802-9, Law Enforcement Officer
position; complainant's Cautionary Letter dated May 8, 1999, Letter of
Instruction dated July 23, 1999, and Letter of Proposed Charges dated
July 29, 1999, would be rescinded and purged from complainant's file;
complainant's applicable Transfer-of-Station costs would be paid for in
accordance to the Federal Travel Regulations; complainant's sick leave
would be restored up to 200 hours of sick leave used between March 1,
1999, and October 19, 1999; and complainant would be reimbursed up to
$400.00 for out-of-pocket expenses. These provisions are not at issue
in the instant appeal.
2The record in evidence does not contain a copy of complainant's letter
to the agency dated March 9, 2001, alleging breach of the October 19,
1999 settlement agreement.