Jason Kwon, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A04230_r (E.E.O.C. Sep. 18, 2002)

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