0120142088
09-26-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120142088
Agency No. ARIRWIN09JUL03069
DECISION
Complainant filed a timely appeal with this Commission from the Agency's February 28, 2014 final decision (FAD), 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 Health System Specialist Risk Manager, at the Agency's Fort Irwin Weed Army Community Hospital facility in Fort Irwin, California.
On December 28, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(4a) The Army agrees to:
Within 30 days of signing this contract, and upon the Fort Irwin CPAC office receiving a signed SF 50 from Complainant of an unconditional resignation, the Army will remove any adverse documents relating to his probationary period and removal from government service, including, but not limited to, his current SF 50 stating that he was removed from his employment during probationary status period.
(7) If the complainant believes that the Army has failed to comply with the terms of this settlement agreement, the Complainant shall notify the Office of EEO/Civil Rights. . . in writing of the alleged noncompliance within 30 calendar days of when the complainant knew or should have known of the alleged noncompliance.
On December 18, 2013, Complainant received his personnel file. The file included a SF 50-B reflecting that Complainant was terminated during his probationary period. By Complainant's Letter of Noncompliance dated January 12, 2014, Complainant alleged that the Agency was in breach of provision 4(a). Specifically, Complainant alleged that the Agency failed to purge his record. He requested to have his EEO complaint reinstated.
In addition, Complainant argued that a breach occurred when Complainant became aware that an attorney at an unemployment hearing knew of adverse information that should not have been available through his personnel record. In an earlier breach letter to the Agency dated February 12, 2013, Complainant claimed that the United States Military Academy's Keller Army Community Hospital attempted to introduce evidence, during an unemployment hearing, of Complainant's alleged misconduct at Fort Irwin. That 2013 claim was the subject of our decision in Rudy S. Melson v. Department of the Army, EEOC Appeal 0120131758 (August 5, 2013). This Office found the claim to be untimely and found no breach.
Upon receipt of Complainant's 2014 breach claim, the Agency requested confirmation of the file contents of Complainant's personnel records from the National Personnel Records Center Annex. On March 18, 2014, the Agency notified Complainant that its search revealed that it had two personnel files for Complainant, under two different names, due to an abbreviated use of his middle name on one of the OPF files. One file included Complainant's middle name. The other record used only the middle initial. The adverse information was inadvertently only removed from one file. The record provides documentation that the Agency now removed the termination action paperwork from both OPF files.
In its February 28, 2014 FAD, the Agency concluded the record shows that Complainant's breach claim was untimely brought, because Complainant knew or should have known that the Activity was in breach as early as March 22, 2012. In addition, the Agency reasoned that these claims were previously adjudicated. The Agency nevertheless acknowledged "there is no evidence that the Activity submitted a request to the Office of Personnel Management to remove the documents in question from the Complainant's OPF, if they still exist in the OPF." 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).
We find that Complainant's 2014 breach claim was timely. In the instant case, Complainant received his personnel record in December of 2013 and notified the Agency within 30 days of his claims of alleged non-compliance. We disagree with the Agency's Brief in Opposition to the Allegation of Non-Compliance, in which the Agency maintains that Complainant was aware of the circumstances which caused him to believe that the Activity was in breach as early as March 22, 2012. Complainant raises a breach claim based on a discovery that occurred on or around December 18, 2013. The Agency thereafter investigated his claims and discovered that the Agency had two personnel records for Complainant. One had been purged, but the other had not. The record contains undisputed documentation that the Agency cleared both records.
The Agency maintains that all of the terms of the Agreement were met and Complainant has failed to prove otherwise. The record contains no evidence that the records still have adverse documents which are inconsistent with the Agreement. The Commission has held that, pursuant to 29 C.F.R. 1614.504(b), an agency has 35 days from the receipt of a complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. In this case, Complainant provided notice in January of 2014. The Agency addressed his new concerns by February 2014. The Commission has further held that if an agency cures a breach during the 35 day period after the filing of a breach claim, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
We find that to the extent that the Agency actions constituted breach, the Agency's action of seeking verification and then ensuring that both records were clear, cured any such breach. Since Complainant presents no evidence of bad faith, we find that the Agency complied with the agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision finding no breach.
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 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 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 (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 (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
September 26, 2014
__________________
Date
2
0120142088
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142088