0120130878
05-17-2013
Gabriell Epperson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Gabriell Epperson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120130878
Agency No. HS-TSA-21730-2012
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated November 9, 2012, 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 Lead Transportation Security Officer at the Agency's Sea-Tac International Airport in Seattle, Washington.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process, and alleged discrimination based on his sex (male), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Complainant and the Agency entered into a settlement agreement, which they amended on March 28, 2012, to resolve the matter. It provided, in pertinent part, that:
(1) Amend the issued ER# 11-996 action [a one day suspension letter] dated December 7, 2011 to reflect a Letter of Reprimand. All language remains the same in the action.
(2) This action will be dated the same day as originally issued on December 7, 2011.
(3) The Letter of Reprimand will be removed...9 months from the date of original suspension issue on December 7, 2011, if no further disciplinary actions occur. The removal date shall be September 7, 2012.
(4) Epperson will receive his pay for 1-day suspension when the Letter of Reprimand action is...returned to him.
(5) Epperson may re-apply for...Supervisory or any other available positions once the Letter of Reprimand is removed, if all conditions of no repeat disciplinary actions occur.1
By letter to the Agency dated September 15, 2012, which he elaborated on October 3, 2012, Complainant wrote that the Agency breached the settlement agreement, and requested that his complaint be reinstated. Specifically, he alleged that the Agency failed to comply with terms 2 and 3 of the settlement agreement because the subject Letter of Reprimand was dated March 28, 2012, not December 7, 2011, as agreed; and the Letter of Reprimand was removed from his official personnel file on September 26, 2012, not September 7, 2012, as agreed.2
In its November 9, 2012 FAD, the Agency conceded that Complainant was correct about the above dates, and explained that its failure to meet them was due to inadvertent administrative errors, which it explained. The Agency indicated it was taking steps to change the date of the Letter of Reprimand to December 7, 2011. Citing Reeves v. Department of the Navy, EEOC Appeal No. 01993392 (May 6, 2000), the Agency found that it substantially complied with the settlement agreement because it took immediate corrective action after Complainant notified it of the breach.
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, the Agency did not comply with terms 2 and 3 of the settlement agreement. In Reeves, the EEOC observed that pursuant to 29 C.F.R. �1614.504(b), when breach of a settlement agreement has been alleged, an agency has 35 days from the receipt of an complainant's allegation of breach to resolve the matter, and the Commission interprets that provision to mean that an Agency has 35 days within which to cure any breach that has occurred.
On appeal Complainant argues, in effect, that the Agency was unable to cure the breach. He explains that he wanted to apply for one of two vacancies for the position of Master Security Training Instructor which had application closing dates of September 24, 2012, but doing so would violate term 5 the settlement agreement because the Letter of Reprimand was not timely removed from his OPF. Complainant submits a copy of the applicable vacancy announcement. Complainant asks that his complaint be reinstated.
We agree with Complainant, for the reason above, that the Agency was unable to cure its breach of the settlement agreement. We note, however, that should the complaint be reinstated, then Complainant and the Agency would be returned to the status quo at the time that the parties entered into the settlement agreement, which would require that Complainant return any benefits received pursuant to the settlement agreement. See Armour v. Department of Defense (Office of Dependents Education), EEOC Appeal No. 01965593 (June 24, 1997). This would result in the revival of the one day suspension, Complainant returning the one day of back pay he received, and the Agency rescinding the substitute Letter of Reprimand. The Agency would still be required, calculating from December 7, 2011, to remove the one day suspension from Complainant's OPF once any time limit to do so under Agency policy has run.
We therefore give Complainant the option, in accordance with the Order below, of either returning the benefits conferred pursuant to the settlement agreement, as amended, or keeping the benefits and abiding by the terms of the settlement agreement, as amended. Should Complainant choose the second option, the Agency will be required to revise the Letter of Reprimand to contain the date of December 7, 2011, to the extent it has not already done so.
The FAD is REVERSED.
ORDER
The Agency is ordered to notify Complainant of his option to return to the status quo prior to the signing the settlement agreement, as amended, within 30 calendar days of the date this decision becomes final. In the notice the Agency shall advise Complainant that he has 15 calendar days from the date of his receipt thereof to notify the Agency either that he wishes to return to the status quo prior to signing of the settlement agreement, as amended, or that he wishes to allow the terms of the settlement agreement, as amended, to stand. Complainant shall be notified that returning to the status quo means he must return any benefits received pursuant to the settlement agreement, as amended. If Complainant opts to return to the status quo, the Agency would still be required, calculating from December 7, 2011, to remove the suspension from Complainant's OPF once the time limit under Agency policy to do so, if any, has run. The above notice to Complainant shall advise him what the effective date of this would be, if any. If Complainant opts to return to the status quo, the Agency must also rescind the Letter of Reprimand. The Agency shall determine any consideration due Complainant, or return of consideration or benefits due from him and include such information in the notice to Complainant.
If Complainant elects to return to the status quo ante and he returns the monies and benefits owing to the Agency, as specified above, the Agency shall resume processing Complainant's complaint from the point processing ceased pursuant to 29 C.F.R. Part 1614.
If Complainant elects not to return to the status quo, i.e., not to return the consideration owing the Agency, the Agency shall notify Complainant that the terms of the settlement agreement shall stand. If this occurs, the Agency shall revise the Letter of Reprimand to contain the date of December 7, 2011, to the extent it has not already done so.
The Agency shall submit a copy of the its notice to Complainant, Complainant's election choice, and documentation showing it has complied with this order to the Compliance Officer, as referenced below, with a copy to Complainant.
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), 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
May 17, 2013
__________________
Date
1 We note that on December 14, 2011, shortly after the suspension, the Agency wrote Complainant that it rescinded its selection of him to the position of Supervisory Transportation Security Officer. In the letter it explained in part that in light of his violation for which he was suspended, he would not make a good role model to subordinates and he showed that he was not ready for supervision. It added therein that he may "re-apply" for the supervisory role once future openings are made available.
2 In its FAD, the Agency mistakenly identified the date of March 28, 2012, as March 28, 2011.
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0120130878
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130878