0120140410
07-20-2016
Arlette W.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arlette W.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120140410
Agency No. FS201200634
DECISION
On October 23, 2013, Complainant filed an appeal from the Agency's September 12, 2013, letter of determination concerning her allegation that the Agency breached its settlement agreement. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's letter of determination.
ISSUE PRESENTED
Whether the Agency breached the settlement agreement when Complainant's former supervisor (FS) did not return phone calls to those requesting a reference for Complainant.
BACKGROUND
Complainant formerly worked as a Forestry Technician at the Agency's Sequoia National Forest in Porterville, California. On January 11, 2013, the parties entered into a settlement agreement to resolve Complainant's allegation of employment discrimination when she was removed from the Agency on August 3, 2012. The relevant portions of the settlement agreement provide:
Section A.5: [The Agency] To provide [Complainant] with a neutral, written reference.
Section A.6: The Agency will issue written direction to the Forest Supervisor and the Fire Management Officer for the Sequoia National Forest and all supervisory employees within the Western Divide Ranger District fire program that upon receiving a request for an employment reference concerning [Complainant] they will not provide any negative or verbal information or references and they will refer all employment references requested from the Agency to the FS.
Section B.2: [Complainant agrees] Not to apply for, pursue or accept employment with the [Agency] at any time on or after the effective date of this Agreement.
Section C.2: [Both parties agree] To cooperate in good faith to complete implementation of this Agreement and abide by the terms of this Agreement. If [Complainant] believes that the Agency has not complied with any terms or conditions of this Agreement, within 30 days of when she knew or should have known of the alleged noncompliance, [Complainant] shall notify the Agency.
On January 18, 2013, the Regional Forester (RF) sent a memo to the relevant supervisors and managers instructing them not to provide any negative or verbal employment reference for Complainant; and to refer any employment reference inquiries to the FS. On January 22, 2013, the FS sent Complainant a signed neutral reference letter.
On January 30, February 27, March 18, and March 19, 2013, the FS received phone calls seeking job references for Complainant. All the calls, except the one received on March 18, 2013, were from other Agency officials. The FS did not return the calls from other Agency officials because he was advised that section B.2 of the settlement agreement provided that Complainant would not seek employment with the Agency.2 The FS stated that in the voicemail he received on March 18, 2013, the caller did not identify which agency he was calling from, and the FS assumed that he was also from the Agency. After the FS realized that the caller was not from the Agency, he returned the call on April 16, 2013, and answered questions regarding Complainant. The FS did not provide a written reference and asserts that he did not provide a negative reference over the phone.
On March 20, 2013, Complainant learned that a potential employer called the FS to obtain a job reference, but that the FS was not returning his phone calls. On March 7, and March 21, 2013, Complainant sent the FS text messages asking if he was getting calls for reference checks. The FS responded that his life had been crazy because he was involved in so many projects, and was getting overwhelmed.
On April 11, 2013, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant argues that the settlement agreement directs the FS to return calls for reference checks, and that his refusal to provide a reference violated the agreement. Complainant requests reinstatement of his EEO complaint, and to enter into alternative dispute resolution.
On September 12, 2013, the Agency issued its letter of determination finding that the Agency had not breached the settlement agreement. The Agency found that it had complied with Section A.6, and that even though Complainant did not allege a breach, it also complied with Section A.5. While Complainant argued that Sections A.6 and C.2 combined should be construed as an obligation for the FS to respond to all reference requests, Complainant conceded that the Agency did comply with Section A.6 of the settlement agreement because a memo was sent out to Agency supervisors and managers regarding reference checks for Complainant. As such, the Agency found that Complainant was unable to show bad faith, or that a breach of the settlement had occurred. Complainant filed the instant appeal, but did not submit a brief in support of her appeal. On March 28, 2014, the Agency filed its opposition brief in an untimely manner.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency's opposition brief is untimely. The Commission's regulations provide that "any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal." 29 C.F.R. �1614.403(f). The Agency stated that on March 19, 2014, it conducted a due diligent search and determined that either Complainant had not submitted a brief in support of her appeal, or that she had filed a brief but had not provided the Agency with a copy. However, we note that Complainant's appeal was filed on October 23, 2013. The record does not show if Complainant provided a copy of her appeal to the agency, but at the latest, the Agency learned of Complainant's appeal from the Commission on December 31, 2013. As such, the Agency had 60 days to file its opposition brief from December 31, 2013, not on the date in which it conducted any due diligent search. The Agency submitted its opposition brief on March 28, 2014, past the deadline, and as such, we will not consider the Agency's opposition brief.
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 comers 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 settlement breach cases, the burden is always placed on the party alleging breach to establish that a breach has occurred. See Porter v. United States Postal Service, EEOC Appeal NO. 01A54699 (December 20, 2005). In this case, we find that Complainant has not established that the Agency breached the settlement agreement. The settlement agreement contains two provisions regarding job references for Complainant, Sections A.5 and A.6. The record shows that the Agency complied with Section A.6 when the RF sent a memo on January 18, 2013, to the relevant Agency managers and supervisors specifically instructing them to not provide any negative references for Complainant; and to direct reference requests to the FS. Additionally, the Agency complied with Section A.5 when the FS sent Complainant a written, neutral reference letter on January 22, 2013.
Complainant claims that the settlement agreement directs the FS to return calls for reference checks. However, upon reviewing the settlement agreement, we find that this is an unexpressed intention not contained within the agreement. The settlement agreement is silent on the issue of phone inquiries, and as such, we do not find that the settlement agreement expressly obligated anyone from the Agency to return phone call inquiries to those requesting references for Complainant.
To the extent that Complainant is arguing that the FS acted in bad faith when he did not respond to phone call requests for references, we find that Complainant has not provided any evidence of bad faith. Complainant breached the settlement agreement when she applied for multiple positions with the Agency, in violation of Section B.2. The FS was aware of this provision and decided that he did not need to return phone calls from other Agency officials requesting a reference. For the reference check from an external agency, the FS returned the phone call, albeit late due to his erroneous assumption that the person was also an Agency official, and answered the questions. Complainant has not shown that the FS provided a negative reference, or that he did not act in good faith. Accordingly, we find that Complainant has not established 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 letter of determination finding that the Agency did not breach the settlement agreement.
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
__7/20/16________________
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.
2 Agency counsel stated that when he became aware of Complainant's employment applications with the Agency, he called Complainant's attorney, who informed him that Complainant was unwilling to withdraw her employment applications, but would decline any job offer from the Agency.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140410
2
0120140410