01A31900_r
12-03-2003
Fernando B. Careaga v. Department of Homeland Security
01A31900
December 3, 2003
.
Fernando B. Careaga,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A31900
Agency No. I-98-0024
DECISION
Complainant appeals to the Commission with regard to his claim that
the agency breached a settlement agreement entered into between the
parties on September 3, 2002. The settlement provided, in pertinent
part as follows:
The Agency agrees to rescind any discipline proposed or imposed on
Complainant prior to the date of its signature to this Settlement
Agreement, and to expunge Complainant's Official Personnel File of any
records of any such discipline except for a copy to be maintained under
seal by Agency legal counsel provided Complainant fulfills all terms and
conditions required by this Agreement. The Agency also will immediately
complete such paperwork (clean SF-50, etc.) as may be necessary to
reflect the lack of disciplinary action on Complainant's record;
. . . .
Agency agrees to process Complainant's separation from the Agency in
accordance with applicable laws and regulations and [Agency] policy,
including a lump sum payment for any annual leave accrued as required
by the same;
To the extent Complainant has not submitted a SF-52 showing a resignation
in compliance with this Agreement, the Agency may process one on his
behalf showing a resignation �for personal reasons� as of October 31,
2002;
. . . .
The Agency agrees to provide �neutral references� in response to any
inquiries made to the Agency by any prospective employers, referred
by Complainant to the Assistant Director, Human Resources and Career
Development, Central Region. Prospective employers will be provided
�neutral references,� i.e. they will be told, before October 31, 2002
or Complainant's resignation, that Complainant is currently employed,
(after October 31, 2002 or Complainant's resignation, that Complainant
voluntarily resigned) the last position occupied by Complainant,
his grade, salary, and dates of service with the [Agency], and that
Complainant has reinstatement eligibility. The Agency will make
reasonable, good faith efforts to ensure that no other information will
be supplied by any other [Agency] manager or [Agency] employee to any
inquiry by any prospective employer of Complainant. The Agency will
direct its employees [Persons A and B] to forward any inquiries they
receive about potential employment of Complainant to the office of the
Assistant Director as indicated above[.]
By letter dated January 13, 2003, complainant informed the agency that
it had breached the settlement agreement. According to complainant,
the agency did not rescind discipline and remove references to such
discipline in his official personnel folder. Complainant stated that
he has not received a lump sum payment for the more than 300 hours
of unused annual leave. Complainant claimed that the agency has not
provided neutral references who would attest to his dates of employment
and his status of reinstatement eligible. According to complainant, he
has not received a clean SF-50 showing that he is reinstatement eligible.
Complainant also stated that the Montana Unemployment Office has been
unable to obtain information regarding his agency wages for the period
of 1999 through August 2002.
On appeal, complainant claims that the agency failed to provide a
neutral point of contact. Complainant maintains that agency officials
are providing derogatory information about him to prospective employers
and thus preventing him from securing employment. Complainant requests
reinstatement of his complaint.
In response, the agency asserts that the settlement agreement has been
fully implemented. According to the agency, complainant was paid for
336 hours of annual leave and 25% �AUO� pay on pay period 26 of 2002.
The agency asserts that complainant's last SF-50 shows that he resigned
for personal reasons and it does not show that he is eligible for
reinstatement. The agency maintains that there are no references to any
discipline or removal action in complainant's official personnel folder.
Finally, the agency states that unemployment claims for the purpose
of verifying salary payments are processed out of the Headquarters
Payroll Office.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
The settlement agreement provided that complainant would receive a
lump sum payment for any annual leave that he accrued. Documentation
submitted by the agency establishes that complainant was paid for 336
hours of accrued annual leave. We find that the agency complied with this
provision of the settlement agreement. With regard to the provision
addressing the agency's processing of a SF-52 showing a resignation
by complainant for personal reasons, we observe that the agency has
fulfilled this provision of the agreement. Complainant claimed that
the SF-52 does not indicate that he is eligible for reinstatement.
However, the settlement agreement does not provide that the SF-52 shall
state that complainant is eligible for reinstatement. The agreement also
provides that the agency would rescind any discipline proposed or imposed
on complainant prior to the date of the agreement and also that such
discipline would be expunged from complainant's official personnel file.
The agency asserts that discipline has been rescinded and references to
such discipline have been removed from complainant's official personnel
file. We find that complainant has not presented any persuasive argument
or evidence that the agency breached this provision of the agreement.
As for complainant's claim that the agency failed to provide neutral
references, we observe that complainant specified that he was not
given a name or telephone number at the Dallas Personnel Office that he
could provide to prospective employers when they sought his references.
We find that complainant has not established that a breach occurred given
that the settlement agreement specifically provides that prospective
employers should be referred by Complainant to the Assistant Director,
Human Resources and Career Development, Central Region. Thus, it was
clear who complainant was to direct prospective employers to in order
for them to receive neutral references. Complainant has not established
that he requested the name and telephone number of the Assistant Director
and was denied such information. With regard to complainant's argument
that agency officials are providing derogatory information about him to
prospective employers and thus preventing him from obtaining employment,
we find that complainant's contention is speculative as complainant has
not submitted any specific evidence as to what was said about him to
his prospective employers. Therefore, we find that complainant has not
established that this portion of provision six was breached by the agency.
Finally, with respect to complainant's claim that the Montana Unemployment
Office has been unable to obtain information from the agency regarding
his agency wages for the period of 1999 to August 2002, we observe that
the settlement agreement does not address any obligation on the part
of the agency to specifically provide that office with complainant's
wage information. Complainant did not show that that office contacted
the Assistant Director, Human Resources and Career Development, in
accordance with provision six and was not provided the stated information.
The agency's decision finding no breach of the settlement agreement
is AFFIRMED.
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
December 3, 2003
__________________
Date