01A03581
01-19-2001
Salvador Sanchez, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Salvador Sanchez v. SSA
01A03581
January 19, 2001
Salvador Sanchez,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A03581
Agency No. SSA-427-88
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 13, 2000, finding that it was in
compliance with the terms of the June 13, 1991 settlement agreement into
which the parties entered.<1> See EEOC Regulations 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 will] change complainant's removal action to a voluntary
resignation for personal reasons.
(2) [The agency will] remove the reprimand, PIP, and all performance
data and related information for the period 10-01-87 to present from the
7B extension file and all other official personnel files. Every effort
will be made to turn over these materials to complainant with 30 days
of his signature to this agreement. No copies of this documentation
will be maintained by the agency or any federal employee.
(3) No negative verbal or written statements will be made by any SSA
management employees to any persons concerning complainant's performance,
work habits, or attendance....
(5) A lump sum payment of $3,000.00 (three thousand dollars) will
be paid to [complainant] as a settlement for withdrawing
the EEO formal complaint and not pursuing arbitration. . . .
By letter to the agency dated October 1, 1999, complainant claimed
that the agency breached the settlement agreement, and requested that
the agency reinstate his complaint. Specifically, complainant claimed
that the agency failed to remove the negative information referenced
in provision 2, and that it breached provision 3, as well as a general
provision not to harass complainant.<2>
In its March 13, 2000 decision, the agency concluded that all
documentation concerning the prior complaint had been destroyed pursuant
to applicable federal government regulations, and that only the settlement
agreement and a copy of the personnel action regarding complainant's
resignation had been maintained by the agency. The agency found that
because neither of these documents violated the settlement agreement,
no breach had occurred as claimed by complainant.
Complainant makes no statement on appeal. In response, the agency avers
that complainant had not worked for the agency since January 1989,
and received workers' compensation payments until April 1998, when
it was discontinued. The agency noted that complainant then sought
reinstatement with the agency, and was told that he would be placed on a
priority list because of his prior employment with the agency. However,
he was then told he would not be placed on the priority list because he
had voluntarily resigned. The agency further indicated that complainant
sought EEO counseling regarding the agency's failure to reinstate him,
but that he did not file a formal complaint on this matter. The agency
again notes that only the settlement agreement and personnel action were
available, and that neither violated the settlement agreement.
In the instant case, review of the record reflects that a personnel
management official stated that complainant was not eligible for
reinstatement because he had been terminated for performance problems.
Additionally, the agency's assistant regional counsel advised the
personnel office that the settlement agreement at issue is in an �adverse
action� file the agency maintained on complainant, and that complainant
was further ineligible for priority reinstatement because his termination
was changed to a resignation.
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 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).
We find that the official's statements, as well as the maintenance
of the settlement agreement in an �adverse action� file violates the
terms of the settlement agreement. Specifically, provision 3 above
reflects that no agency official is to make negative remarks about
complainant's performance. However, the official here determined that
complainant was not eligible for reinstatement because he was terminated
for �performance problems� and communicated this matter to staff, as
well as to the EEO Counselor. Moreover, to maintain the settlement
agreement, which identifies all the negative actions to be removed
from complainant's files, in an �adverse action� file is tantamount to
maintaining these records themselves, and violates the intent to have
all negative references removed from all personnel files.
Accordingly, we find that the agency breached the settlement agreement as
claimed by complainant. Where, as here, a breach is found, the remedial
relief is either the reinstatement of the complaint for further processing
or specific enforcement of the settlement agreement. If the complainant's
complaint is reinstated for further processing, then the parties must
be returned to the status quo at the time that the parties entered into
the settlement agreement, which requires that the complainant return
any benefits received pursuant to the terms of the settlement agreement.
See, e.g. Armour v. Department of Defense, EEOC Appeal No. 01965593 (June
24, 1997); Komiskey v. Department of the Army, EEOC Appeal No. 01955696
(September 5, 1996).
Here, complainant requested that his complaint be reinstated for further
processing. Consequently, on remand, complainant shall be advised
that in order to reinstate the complaint, a condition precedent is
the return of any benefits received through the execution of the other
provisions of the agreement. In view of this requirement, we therefore
give complainant the option, in accordance with the ORDER below, of
either returning the benefits conferred pursuant to the agreement and
reinstating the complaint, or keeping the benefits conferred pursuant
to the agreement and having the agreement specifically enforced.
Based on the foregoing, we REVERSE the agency's final decision, and
REMAND this matter to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to notify complainant of his option to return to
the status quo prior to the signing of the settlement agreement and
having his complaint reinstated or having the terms of the agreement
specifically enforced. The agency shall so notify complainant within
fifteen (15) calendar days of the date that this decision becomes final.
The agency shall also notify complainant that he has fifteen (15) calendar
days from the date of his receipt of the agency's notice within which
to notify the agency of his choice. Complainant shall be notified that
in order to return to the status quo ante, he must return any benefits
received pursuant to the agreement.
If complainant elects to return to the status quo ante and he returns
any monies owing to the agency, the agency shall resume processing of
complainant's complaint from the point that processing ceased pursuant to
29 C.F.R. � 1614.108 et seq. If complainant elects not to return to the
status quo ante, i.e., not to return any consideration owing the agency,
the agency shall notify complainant that the terms of the agreement will
be specifically enforced.
A copy of the agency's notice to complainant regarding his options, as
well as a copy of either the correspondence reinstating the complaint
for processing or the correspondence notifying 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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:
January 19, 2001
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We advise complainant that he must contact an EEO counselor and file a
separate complaint if he feels that the agency is engaged in retaliatory
harassment. 29 C.F.R. � 1614.504(c)