0120140917
04-29-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120140917
Agency No. HS-CIS-000258-2010
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 10, 2013, 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 an Immigration Services Officer at the Agency's California Services Center.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On June 9, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) Complainant's electronic Official Personnel File will reflect that she resigned for personal reasons from employment with the [Agency] effective October 15, 2009.
By letter to the Agency dated October 31, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, on October 4, 2013, Complainant received a copy of her electronic Official Personnel File (OPF). In her OPF, she found a copy of the Agency's Notification of Personnel Action effective October 15, 2009, indicating that Complainant was terminated during her probationary/trial period. As such, she asserted that the Agency breached the settlement agreement.
In its December 10, 2013 FAD, the Agency concluded that it did not breach the settlement agreement. The Agency reviewed Complainant's OPF on November 12, 2013, and determined that it had properly documented that Complainant resigned for personal reasons on October 15, 2009. The Agency provided a declaration by the Human Resources Specialist (HR Specialist) to support its determination. Therefore, the Agency concluded that there was no breach of the settlement agreement.
Complainant appealed the Agency's determination noting that she found a copy of the Notification stating that she was terminated from the Agency. As such, she argued that the Agency breached the settlement agreement.
In response to the appeal, the Agency indicated that Complainant requested a copy of her OPF from the National Archives Records Administration (NARA). The Agency noted that NARA has a hardcopy of Complainant's OPF. The Agency provided an affidavit from the HR Specialist. She noted that on January 15, 2014, she contacted NARA requesting that it send Complainant's entire file to her. She received the file on January 22, 2014. She reviewed the NARA file and discovered the Notification stating that Complainant was terminated. She averred that she shredded the document. The HR Specialist stated that she would allow Complainant to review the file before it is submitted to NARA.
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 Complainant has shown that the Agency breached the settlement agreement when a copy of Complainant's OPF provided to NARA contained the Notification of Personnel Action indicating that she had been terminated. However, the Agency has provided evidence in the form of a statement by the HR Specialist showing that it is taking the appropriate steps to cure the breach. However, we find that the Agency has not taken the last steps to send the OPF to NARA. The HR Specialist noted that she wanted to meet with Complainant to assure her that the file that would be sent to NARA would only contain the correct Notification form. As such, we find that the Agency breached the settlement agreement, but that the breach can be cured. We order the parties to take the appropriate steps to ensure that the proper Notification form is in Complainant's OPF and that the documents are sent to NARA.
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 final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
I. The HR Specialist will contact Complainant to set up a time for Complainant to review her OPF, both in electronic and hard copy form. The HR Specialist will contact Complainant within 15 calendar days of the date this decision becomes final. Complainant will agree to meet the HR Specialist at the Agency's facility within 15 calendar days of the date the HR Specialist contacts her.
II. Following the review by Complainant, the Agency will send NARA the hardcopy of Complainant's OPF within 45 calendar days of the date this 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), 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 (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
April 29, 2014
__________________
Date
2
0120140917
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140917