0120053276
10-18-2007
Daniel Gordon, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Daniel Gordon,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120053276
Agency No. TSA-04-0856
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 11, 2005, finding that it was
in compliance with the terms of the August 4, 2004 settlement agreement
into which the parties entered. See 29 C.F.R. �� 1614.402; .405,
and 1614.504(b).
The August 2004 settlement agreement provided, in pertinent part, that:
[1.] The management team at DFW [Airport] will research the events
surrounding the administration of [complainant's] recertification test.
[2.] Based on the results of the investigation, DFW will prepare
a waiver request (if applicable) and send the package to [agency]
Headquarters for approval. Preliminary information supports the
submission of a waiver package for [complainant]. This package will be
sent no later than Friday, August 13, 2004. [Complainant] will receive
a copy of the package.
[3.] DFW will review its procedures for retraining screening staff
who have been absent from the workplace. Based on this review DFW will
implement new written procedures to ensure all screening staff members
returning to work are given the appropriate retraining. . . .
The parties voluntarily enter into this settlement agreement (Agreement)
and accept its terms as written evidence of their full, complete and final
settlement of the above referenced complaint. . . . The written terms
memorialized in this agreement are the final terms of the agreement.
. . . Unless otherwise stated herein, all parties waive their rights
to attorney's fees and/or any other monetary costs or damages related
to the matter(s) resolved by this Agreement.
In a letter dated November 18, 2004, the agency informed complainant
that it researched the administration of his recertification test and
subsequent removal, and intended to reinstate complainant and provide him
60 hours of on-the-job training. Subsequently, complainant expressed
an interest in reinstatement. The agency informed complainant that,
he had to submit the following documents for consideration prior to
rehire: current resume, resignation personnel action, Declaration of
Federal Employment, Questionnaire for National Security Positions, Fair
Credit Reporting Act Authorization, Certification of Physical/Medical
Ability to Meet Job Requirements, and the name of his former agency
supervisor/screening manager and terminal assignment.
By letter to the agency dated February 25, 2005, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Complainant alleged
that it seemed the agency attempted to undermine his effort to return
to work. Complainant stated that the agency's correspondence suggested
that he had to apply for an agency position and the documents that it
required for his reinstatement could be confusing to those unaware of
the circumstances surrounding his termination and settlement agreement.
On March 9, 20051, complainant stated that he is entitled to back-pay
and lost benefits as the agency determined that his removal was a
"mistake." In response, the agency stated that it did not intend
to prejudice complainant's reinstatement and that he did not have to
provide a personnel action for his removal or the name of his former
supervisor and terminal assignment. Further, the agency stated that,
under the settlement agreement, complainant is not entitled to back-pay or
other lost benefits as he waived his right to such, released the agency
from any claims of liability related to his employment, and agreed
the August 2004 document was the full and final agreement. Finally,
it noted that the assertion of a "mistake" in termination is without
merit as complainant was removed for failing his recertification test,
as were others in the same situation, and it agreed to waive the test
at the time. The instant appeal followed from complainant.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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 neither compensation for back-pay/lost
benefits nor the logistics of reinstatement if the waiver request
was approved by headquarters fall within the scope of the August 2004
settlement agreement. Instead, we conclude that complainant is basing his
allegations of noncompliance on agency documents external to the August
2004 settlement agreement. Based on the plain meaning of the August 4,
2004 agreement between complainant and the agency, the Commission finds
no basis for complainant's assertion that his reinstatement requirements
and remedies depart from the settlement agreement's terms. We AFFIRM
the agency's final decision finding no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 18, 2007
__________________
Date
1 We note that the letter is dated erroneously 2004.
??
??
??
??
2
0120053276
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120053276