0120120525
03-27-2012
Alphonso D. del Castillo, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Alphonso D. del Castillo,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120120525
Agency No. HS-TSA-002107-2005
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated November 4, 2011, 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 had
a case pending a hearing before an EEOC Administrative Judge (AJ).
Complainant indicated that the AJ provided him with the opportunity
to prepare a proposal for a global agreement settling a number of EEO
complaints.
In order to properly review his complaint files and draft the global
settlement proposal, Complainant asserted he needed official time from the
Agency, and that he intended to use the rights to official time provided
him in an earlier settlement agreement, executed in December 2007.
The December 2007 settlement agreement provided, in pertinent part, that:
(17) The Agency recognized that, pursuant to 29 C.F.R. § 1614.605(b),
Complainant shall have a reasonable amount of official time, if otherwise
on duty, to prepare the complaint and to respond to the Agency and EEOC
requests for information. To this end, the Agency’s EEO officials will
notify Complainant’s Supervisors of this right to reasonable amounts
of official time to prepare his complainant and respond to the Agency
requests for information and official time to attend meeting related to
his EEO Complaint. The Parties agree to adhere to the requirements set
forth in EEOC Management Directive (MD) 110, Chapter 6, Section VII(C).
By letter to the Agency dated October 5, 2011, 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 provide him with reasonable official
time to prepare his global settlement proposal. Complainant indicated
that he needed official time in order to review tens of thousands of pages
of documents. Complainant requested that his supervisor (Supervisor)
provide him with 10 hours of official time during the settlement agreement
review period. The Supervisor provided Complainant with two hours per
day. Complainant believed that the Supervisor’s action was in violation
of the December 2007 settlement agreement.
In its November 4, 2011 FAD, the Agency concluded the Supervisor provided
Complainant with two hours per day in official time, which it concluded
was reasonable. Therefore, the Agency determined that it had not breached
the settlement agreement.
Complainant appealed asserting that he devoted some 576 hours over 36
days reviewing the record in conjunction with the settlement agreement
before the AJ. Therefore, Complainant believed that the Agency failed
to comply with the December 2007 settlement agreement.
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).
Whether or not the December 2007 settlement agreement existed,
Complainant is entitled to reasonable official time for the processing
of his EEO complaints. 29 C.F.R. § 1614.605(b). Thus, the real
issue in this case is whether the Supervisor improperly denied
Complainant’s request for official time. The Commission has stated
that a claim regarding the denial of official time states a separately
processable claim claiming a violation of the Commission's regulations,
without requiring a determination of whether the action was motivated by
discrimination. Edwards v. U.S. Postal Serv., EEOC Request No. 05960179
(Dec. 23, 1996). If the Agency denies a request for official time,
either in whole or in part, the Agency must prepare a written statement
noting the reasons for the denial.
Upon review of the record, we are unable to determine whether Complainant
was denied a reasonable amount of official time. Therefore, we remand
this matter to the Agency in accordance with the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. Within 15 calendar days of the date this decision becomes final,
the Agency shall contact Complainant to clarify his claim that he was
denied official time providing details of the alleged denial including
when it happened and who denied official time. Complainant shall also
provide any evidence in support of his claim. Complainant must provide
this information to the Agency within 15 calendar days.
2. Thereafter, within 45 calendar days of the date this decision becomes
final, the Agency shall issue a decision, with appeal rights to the
Commission, as to whether Complainant was denied a reasonable amount of
official time regarding the matters raised in his claim. If the Agency
determines that Complainant was denied a reasonable amount of official
time, it shall restore any annual leave that Complainant may have used
in order to develop his EEO complaint and issue him a check for its
value as he is no longer employed by the Agency.
3. A copy of the Agency's decision must be submitted to the Compliance
Officer as referenced herein.
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 (T0610)
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 (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
March 27, 2012
__________________
Date
2
0120120525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120525