Nathan Whatley, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionFeb 26, 2004
01A31889_r (E.E.O.C. Feb. 26, 2004)

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.