Fernando B. Careaga, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionDec 3, 2003
01A31900_r (E.E.O.C. Dec. 3, 2003)

01A31900_r

12-03-2003

Fernando B. Careaga, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.


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