01A04230_r
09-18-2002
Jason Kwon, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jason Kwon v. Department of the Treasury
01A04230
September 18, 2002
.
Jason Kwon,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A04230
Agency No. TD-99-4142
DECISION
Complainant filed a timely appeal with this Commission from a decision by
the agency dated April 24, 2000, finding that complainant breached the
terms of a September 24, 1999 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(IC) The agency agrees to place the employee-complainant on a one-hundred
eighty -day(180) Performance Improvement Plan (PIP). The terms of
the PIP will include, but will not be limited to, the assignment of a
senior agent, who will, during the PIP, be responsible for observing
the employee in the performance of his duties in the office and in the
field. The senior agent will provide information to the employee's
immediate supervisor, so that the supervisor can provide complainant
with performance feedback. At least monthly, during the PIP, the
immediate supervisor (or his designee in the absence of the immediate
supervisor) will conduct work-plan review/discussions with the employee.
These reviews/discussions will be confirmed in writing with a copy of
the feedback provided to the employee;
(IIC) The employee further agrees that he will readily respond to the
direction of his management chain, attend any and all work-plan reviews
described in paragraph 1 above, and furnish any and all information that
is requested of him in connection with matters of official interest; and
Should the employee breach any part, term or portion of this agreement,
he shall be subject to immediate removal. Should management take the
removal action for breach of this agreement, complainant waives any and
all of his appeal rights, under Merit Systems Protection Board appeals
procedures, in any court, and/or in any other forum. Complainant agrees
that any appeal/complaint to the EEOC will be limited to the sole issue
of whether complainant breached the terms of this agreement.
By letter to complainant dated April 24, 2000, the agency alleged
that complainant breached the terms of the settlement agreement and
consequently terminated complainant. The agency asserted that complainant
engaged in the following actions in violation of provision IIC of the
agreement:
On April 4, 2000, complainant refused to tell the senior agent assigned to
oversee his work on behalf of complainant's supervisor, what he was doing
with regards to his work through April 15, 2000. Further, complainant
refused to contact a witness to set up an interview appointment after
the senior agent directed him to do so;
On April 4, 2000, complainant refused to respond to a work assignment
to interview a police officer in the office lobby;
On February 10, 2000, complainant requested an agent other than
the senior assigned to him, to accompany him on a drive-by, without
notification or authorization;
On November 20, 1999, complainant signed out in the sign-out book
without documenting the address of his destination;
On November 15, 1999, complainant failed to obtain approval from his
manager or the senior agent assigned to him, prior to contacting an
agent in another group to volunteer to participate in a search warrant.
The agency found that complainant's alleged actions contravene the
directions of complainant's supervisor in a memorandum dated October
25, 1999. In that memorandum, complainant's supervisor notified
complainant that all requests for assistance for assignments must be
made through his special agent or himself and that complainant should
not contact special agents in other groups regarding official business.
Further, the memorandum apprized complainant that he should log out in the
sign-out book whenever he is out in the field with specific information
regarding his destination, including the address and telephone number
of his destination. Finally, the supervisor's memorandum stated that
no �drive-bys� should be conducted without approval from complainant's
supervisor or the special agent.
By letter dated May 24, 2000, complainant alleged that the agency failed
to comply with the terms of the settlement agreement. Specifically,
complainant alleged that the agency breached the settlement agreement when
it terminated him by letter dated April 24, 2000. Further, complainant
denied that he engaged in any conduct contrary to the terms of the
agreement or agency procedures. When the agency failed to respond
further to complainant's claims, complainant appealed to the Commission.
On appeal, complainant reiterates that he did not violate agency policy
or procedure, and offers the following responses for the agency's stated
reasons for termination:
(aa) Complainant contends that he did not refuse to interview a
particular witness, but only expressed personal uneasiness about
interviewing a person who recently had alleged that complainant engaged
in misconduct. Moreover, complainant claims that he offered to interview
the witness after April 15, 2000. Further, complainant denies he
refused to tell the senior agent what he was doing with regards to
his work;
(bb) Complainant maintains that he was sick when the special agent
assigned him to interview an informant and requested that he assign
another agent to conduct the interview because of his illness;
(cc) Complainant contends that the special agent overseeing him
directed complainant to contact another special agent to accompany him
on a �drive-by;�
(dd) Complainant maintains that the special agent knew where he was
going, therefore obviating the need to write the exact address of his
destination in the log book. Moreover, complainant contends that there
was not enough room in the sign out box to put the exact address; and
(ee) Complainant contends that he merely responded to his manager's
call for volunteers to serve a search warrant and was instructed by the
manager to respond directly to the group manager for search managers,
which he did.
EEO 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 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).
Upon review, the Commission determines that the agency properly
found that complainant breached the settlement agreement's terms.
Complainant, while denying some of the claims by the agency, does
not deny all the stated incidents. For example, regarding point (a),
complainant does not deny failing to contact a person for an interview,
stating that he offered to interview the witness after April 15, 2000;
regarding point (b), complainant explains that the reason he refused
to interview a police officer is that he was sick; and regarding point
(d) complainant acknowledges on appeal that he failed to include the
address of his �drive-by� destination because his manager knew where
he was going and �there was not enough room in the box in the sign out
book to put the exact address where I was going.� Thus, we find that
complainant's actions contravened the settlement agreement, rendering
the agency's subsequent termination of complainant consistent with the
agreement's terms.
Accordingly, the agency's finding 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
September 18, 2002
__________________
Date