0120152599
03-07-2017
Shanti N.,1 Complainant, v. Edward Hugler, Acting Secretary, Department of Labor (Mine Safety & Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shanti N.,1
Complainant,
v.
Edward Hugler,
Acting Secretary,
Department of Labor
(Mine Safety & Health Administration),
Agency.
Appeal No. 0120152599
Agency No. F-10-11-100
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 19, 2015, 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 a Human Resources Officer at the Agency. Complainant was placed on a detail as a Special Assistant to the Director of Workforce Programs and Diversity Outreach. On August 29, 2010, Complainant began her employment with the General Services Administration.
Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding her employment with the Agency. On January 12, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) Within twenty-one (21) calendar days after the date this Agreement becomes effective, the Agency shall:
(c) Expunge from Employee's personnel files all record of her detail and reassignment to the position of Special Assistant to the Director of Workforce Programs and Diversity Outreach.
(2) Employee agrees to provide the name, address, telephone number, fax and e-mail of an individual at the General Services Administration (GSA), who shall be the Agency's contact at GSA for the purpose of effectuating paragraph 1 above.
(3) Employee understands and agrees that any act or omission by GSA or other third party with regard to . . . expunging employee's personnel files is not within the Agency's control and shall not be a breach of this Agreement.
The parties agreed that the matter was not within the MSPB's jurisdiction and that the settlement agreement was within the EEOC's jurisdiction.
By email to the Agency dated April 17, 2015, 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 expunge the documents related to her detail to the Special Assistant position within the Agency. Complainant asserted that there were five documents in her personnel file relating to her detail, namely SF-50's. Four deal with the detail, its extension, its termination and her reassignment. The fifth document indicated that her Special Assistant assignment was terminated and that she was transferred to the GSA which was approved on August 26, 2010. Complainant indicated that she was informed by a GSA Official that this final document terminating her from her Special Assistant position and reassignment to GSA was not expunged. Complainant contacted the Director at the Agency seeking correction to her record by email on February 6, 2015. Complainant asserted that because of the documents, she was being accused of fraud by GSA.
In its June 19, 2015 FAD, the Agency concluded that Complainant's claim of breach was raised in an untimely manner. The Agency noted that Complainant had the opportunity to review the records by her attorney (Attorney) in 2013. The Attorney indicated that the documents were not expunged. The Agency contacted GSA who noted that the Office of Personnel Management (OPM) would be needed to obtain special permission. GSA informed the Agency that it would follow up with Complainant and update her on the situation in 2013. As such, the Agency noted that Complainant's claim of breach in 2015, was well beyond the 30 days as provided in the settlement agreement.
Further, the Agency determined, assuming the claim of breach was timely raised, it did not breach the agreement. It indicated that the Agency intended only to undertake the obligation to expunge the documents from any personnel file it maintained at that time and that it would take steps to have GSA expunge the references from files maintained by GSA. The Agency held that Complainant pointed to no evidence that the Agency failed to expunge these records from its own personnel files. In fact, the Agency noted that Complainant acknowledged that all but one document was expunged, and she agreed with the GSA processor to wait to expunge it until the Agency provided a corrected version. Complainant has not indicated how the documents ended up in GSA's Office of Inspector General's (GSA-OIG) control. The Agency noted that it is merely speculation that they came from the Agency and not GSA. Further, the settlement agreement noted that the obligations were for the parties, not GSA. In addition, the Agency argued that it had taken the necessary steps as required in providing Complainant with the contact information at GSA to ensure the proper removal of the documents in question. As such, the Agency concluded that it has not breached the settlement agreement.
Complainant appealed. The Agency requested that the Commission affirm it determination.
ANALYSIS
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 asserted that the Agency breached the settlement agreement when she became aware of the existence of documents which should have been expunged from her record. She learned of the situation in 2015, when GSA-OIG contacted her regarding an investigation due to inconsistencies in her documentation. Complainant speculated that the Agency provided these documents to GSA. However, the Agency met its obligations to provide Complainant with the contact information at GSA to ensure that the documents were expunged from her records with that agency. Further, the Agency noted that it had provided Complainant's records with corrected forms. It was GSA that advised Complainant not to expunge documents until corrected versions had been put in their place. It was GSA that failed to expunge one of the five documents. As such, we conclude that Complainant has not shown that the Agency breached the settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 7, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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