0120070017
09-30-2008
Joey D. Davis, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Joey D. Davis,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070017
Agency No. TSAF040370
Hearing No. 230-2005-00038X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 30, 2006, finding that it was
in compliance with the terms of the July 6, 2006, 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.
Complainant alleged that the agency failed to fulfill its responsibilities
under Section B of the Settlement Agreement. Section B of the settlement
agreement provided, in pertinent part, that the agency would:
(1) remove from his personnel file a notice of three-day suspension
without pay, issued on September 26, 2005;
(2) execute an amended time and labor report and change the three-day
suspension without pay, imposed pursuant to the notice dated September
25, 2005, to three days of paid administrative leave;
(3) remove from his personnel file a memorandum of counseling
regarding on-time attendance performance dated February 27, 2003;
(4) pay to him three bonuses to which he was entitled after the
notice of three-day suspension without pay issued on September 25, 2005,
was removed from his personnel file:
(a) a $500.00 retention bonus;
(b) a performance award equal to 1.1% of his annual pay, and;
(c) a performance award equal to 1.0% of his annual pay.
By letter to the agency dated August 14, 2006, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms or that his case be
reinstated and processed from the point processing ceased.1 Specifically,
complainant alleged that the agency failed to comply with section 4(b)
of the agreement.
In its November 30, 2006 FAD, the agency concluded that it had completed
terms one, two, three, and that subsections (a) and (c) of four had been
completed. The agency indicated that it was pursuing implementation
of subsection (b) of four but required additional time to create the
personnel action necessary to satisfy this remaining term. The agency
argued that even though the agreement did not provide a specific time
period for performance by the agency, it had completed all but one of the
terms within a three month period and was working on the last subsection.
The agency indicated that it has acted in good faith and has complied with
almost all of the terms of the settlement agreement within a reasonable
amount of time.
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. 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 O 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).
In the instant case, the Commission finds that the agency has partially
complied with the terms of the settlement agreement, but it has failed
to fully comply with respect to term 4(b). In fact, the agency admits
that it has not complied with section 4(b) of the settlement agreement,
but contends that it is working to implement said term. Inasmuch as
the agency has not provided complainant with a performance award equal
to 1.1% of his annual pay, the Commission finds that the agency is in
breach of the agreement. Complainant requested that the agency either
render specific performance or reinstate his complaint. In light of
the agency's partial compliance, and its efforts to implement term 4(b),
we order specific performance of the aforesaid term. Accordingly, the
agency's finding of no settlement breach is reversed, and the matter is
remanded to the agency for compliance with the Order below.
ORDER
To the extent that it has not already done so:
1. Within thirty (30) calendar days from the date that this decision
becomes final, the agency shall pay complainant a performance award
equal to 1.1% of his annual pay.
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the above-stated action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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
09-30-08
__________________
Date
1 Complainant also requested that he be allowed to amend his case to add
the basis of retaliation. However, since we are not reinstating his case
to the point were processing ceased, we are not addressing this issue.
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0120070017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036