0120160533
03-14-2017
Chelsie L.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chelsie L.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160533
Agency No. ARFTCAMP13AUG04412
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 21, 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 compliance action, Complainant worked as a Procurement Analyst at the Agency's U.S. Army Garrison facility in Fort Campbell, Kentucky.
On October 15, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2b) Within fifteen (15) business days of the effective date of the Agreement, the Army will prepare and submit the necessary paperwork to cancel EMPLOYEE's letter of reprimand and 3-day suspension and expunge any references to said actions in EMPLOYEE's Official Personnel File (OPF). The Army will also expunge EMPLOYEE's local (Fort Campbell MICC office) personnel file of any negative references and / or disciplinary actions to include but not limited to suspensions, letter of reprimand, counselings, memorandums, letter of instructions and / or supporting documentation thereof from 15 May 2013 until the effective date of this Agreement. The Army will not process any disciplinary actions against EMPLOYEE resulting from any and all 15-6 investigations conducted from August 2013 until the date of this Agreement.
(11) This Agreement constitutes the complete understanding between EMPLOYEE and the ARMY and supersedes any previous agreements or understandings between the parties. No other promises or agreements will be binding unless signed by both parties.
The Human Resources Specialist provided a November 24, 2014 email, verifying that the Letter of Reprimand had been removed from Complainant's OPF. The Agency believed that it had complied with the terms of the Agreement. It was later found that a code, reflected in the Defense Civilian Personnel Data System (DCPDS), was visible to another agency, which was Complainant's new employer. That code referenced the May 14, 2014 Letter of Reprimand.
By letter, dated September 1, 2015, to the Department of the Army (Activity), Complainant alleged that the Agency was in breach of the settlement agreement. Complainant learned about the code because she was informed that the other agency (Department of the Navy) had access to her personnel record and could see the Army DCPDS data field.
After Complainant contacted the Activity on September 1, 2015, the Activity discovered that the code referencing the Letter of Reprimand could be seen in a data field that had been uploaded from the DCPDS to the Navy's system. The Army personnel removed the code from DCPDS. In addition, on September 16, 2015, the Activity's Labor Counselor spoke with the Navy Labor Counselor about the error. The Activity's Labor Counselor provided a signed declaration explaining the situation. The Navy Labor Counselor informed the Activity's Counselor all references to the Navy's proposed disciplinary action against Complainant would be amended to remove all references to the Army's Letter of Reprimand and stated that any Navy actions would be decided independent of any derogatory Army information.
Agency Determination
In its FAD, the Agency stated that "we will consider the presence of a coded reference to the letter of Reprimand in the DCPDS to constitute a breach of the Activity's duty under NSA Term 2b." Next, the Agency stated that the "Activity effectively cured this breach." The Agency reasoned that when the Army corrected the DCPDS entries and communicated with the Navy, it completed the requirements under the Agreement to remove derogatory information from Complainant's file. The Agency concluded this issue was now moot as all derogatory information had been deleted. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant maintained that she "will not get promoted in the future with [her] current employer" and that she "did not receive interviews" or referrals for promotional opportunities because the Agency failed in its duty to expunge the record.
The Agency argued that it took steps to cure the breach within 35 days and Complainant's noncompliance allegation was not substantiated.
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).
We find that the Agreement is valid and binding on both parties.
The Agreement required the Activity to remove from the Employee's OPF and the local personnel file any references to the prior identified adverse personnel actions. The failure to do this constituted a breach on the part of the Activity.
The Commission has held that pursuant to 29 C.F.R. � 1614.504(b), an agency has 35 days from the receipt of notice of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35 day period following the breach notification, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
We agree with the Agency, therefore, that it took the requisite steps to cure the breach within 35 days of the date that the noncompliance claim was brought to its attention. We further find that the Agency provided sufficient documentation of its compliance actions.
Further, in the instant case, Complainant failed to show that she was denied promotional opportunities because of the breach. The record showed that she was subsequently employed by the same federal agency which inadvertently received notice of the code.
For all of these reasons, we find that Complainant failed to show that the Agency failed to comply with the Agreement.
CONCLUSION
We AFFIRM the Agency's 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 tends 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 14, 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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