0120122078
05-10-2013
Vincent Hayward, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Vincent Hayward,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120122078
Agency No. HS-TSA-00229-2011
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 26, 2012, 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 Supervisory Transportation Security Officer at the Agency's facility located at the Baltimore-Washington International Airport in Maryland.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 20, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) Based upon the terms and conditions set forth below, Complainant agrees to dismiss with prejudice all claims set forth in EEO Complaint Case File HSTSA- 00299-2011.
(2) The Agency agrees to withdraw and remove from Complainant's personnel file the January 12, 2011 Notice of Decision, Ref: 10-11278, and all associated documentation, including, but not limited to the January 4, 2011 Notice of Proposed Reduction in Pay Grade and pay band.
(3) Beginning on January 23, 2011 Complainant will be suspended from duty without pay for ten calendar days, returning to work on February 2, 2011.
By letter to the Agency dated February 23, 2012, 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 breached the settlement agreement when it issued the Standard Form 50 (SF-50) for the ten day suspension listed in item (3) which provided the reason for the suspension as the reasons provided in the January 12, 2011 Notice of Decision. Complainant's attorney (Attorney) indicated that if the Agency was required to provide a reason for the suspension, the Agency could have simply stated, "Per terms of Settlement Agreement of EEO Case No. HS-TSA-00299-2011." The Attorney argued that by leaving the reasons, the Agency violated provision (2) of the settlement agreement which required the Agency to eliminate any reference to the alleged reasons for the disciplinary action which was removed from Complainant's personnel file.
In its March 26, 2012 FAD, the Agency concluded that it did not breach the settlement agreement. The Agency noted that, per Office of Personnel Management (OPM) guidelines, it is required to provide a reason for the action taken. As such, to comply with the OPM regulations, the Agency placed the specific language of the charge of the suspension on the SF-50. The Agency found that doing so did not breach the settlement agreement. This appeal followed.
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, we find that the Agency has breached the settlement agreement. The agreement provided that the January 12, 2011 Notice of Decision and all associated documentation, would be removed from Complainant's personnel file. We find that by providing the reasons from the January 12, 2011 Notice of Decision in the SF-50 for the suspension listed in provision (3), the Agency violated the settlement agreement. Further, as the Attorney correctly indicated, the Agency can provide the reason for the suspension on the SF-50 as this settlement agreement. Therefore, the Agency can cure the breach while still complying OPM guidelines.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's determination and conclude that the Agency breached the settlement agreement. Therefore, we REMAND the matter to the Agency in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
I. Remove all references to the reason for issuing the January 12, 2011 Notice of Decision as found in the ten day suspension.
II. The Agency shall replace the SF-50 with a new SF-50 providing the following reason for the suspension: "Per terms of Settlement Agreement of EEO Case No. HS-TSA-00299-2011."
III. Complainant will be provided with an opportunity to review his personnel file to ensure that the Agency has complied with the Orders listed herein.
IV. The Agency shall complete all of the above actions within thirty (30) calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 10, 2013
__________________
Date
2
0120122078
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122078