0120121693
04-11-2012
Joyce A. McMahon, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Joyce A. McMahon,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120121693
Agency No. HS-08-CBP-004380
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated March 3, 2011, finding that it was in compliance with
the terms of the settlement agreement into which the parties entered.
BACKGROUND
On March 28, 2008, Complainant filed an equal employment opportunity
complaint with the Agency. Specifically, Complainant alleged
discrimination on the bases of age (54), race (White), color (white),
sex (female), national origin (American), religion (Unitarian) and in
reprisal for seeking EEO counseling when on January 14, 2008, she became
aware that her application for the position of Auditor, GS-0511-11,
New York Field Office under the Federal Career Intern Program (FCIP) was
not processed correctly resulting in a determination that she had failed
her background investigation and was ineligible for hire with the Agency.
On June 16, 2009, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement provided,
in pertinent part, that:
II. In consideration of the Complainant's promises and
representations in paragraph
I, supra, and paragraph III, infra, the Agency hereby agrees to:
A. Present Complainant with a conditional offer of employment for the
position of Regulatory Auditor at the GS-09 level. The offer will be
conditional on the completion of all pre-employment requirements,
including Complainant's successful completion of a new background
investigation. The Agency will make efforts to expedite the background
investigation process; however, a full and thorough background must be
completed prior to Complainant's report date with the Agency.
B. The Agency will offer Complainant the Regulatory Auditor position as
part of the Agency's Federal Career Internship Program (FCIP) whereby
Complainant will be subject to a two-year probationary period beginning
on Complainant's report date.
III. The Agency and the Complainant jointly agree as follows:
E. The parties understand and agree that the terms and conditions of this
Agreement shall not be communicated to any third party, or publicized
in any manner, except as necessary for the enforcement of its terms or
as required by law, and will be kept strictly confidential.
By letter to the Agency dated February 26, 2011, Complainant alleged the
Agency breached provisions II.A. and II.B. of the settlement agreement
when it subjected her to non-sexual harassment. Complainant claimed
that the alleged harassment started two months after the Assistant Field
Director (AFD), Office of Regulatory Audit, Office of International
Trade became her supervisor and culminated in incidents occurring on
January 26-28, 2011. Complainant also alleged that the settlement
agreement was void due to lack of good faith, frustration of purpose,
violation of public policy, and claimed the Agency Official who signed
the Agreement was not a proper agent in that he lacked the capacity to
bind the Agency to the agreement.
In its March 3, 2011 decision, the Agency stated that it did not
violate the June 16, 2009 settlement agreement. The Agency noted
that provisions II.A. and II.B. focus on the requirements that must
be met for the conditional offer of employment to become permanent.
The Agency notes that in support of her claim that the agreement was
violated, Complainant listed twelve instances of alleged harassment by
Agency officials, almost all involving day-to-day work issues such as
deadlines and project guidelines. The Agency stated that these instances
of alleged harassment are not an appropriate basis for finding a breach
of the subject settlement agreement.
With regard to Complainant’s assertion that the agreement is void,
the Agency referred to the decision it issued in McMahon v. Dep’t
of Homeland Security, HS-08-CBP-004380 (January 19, 2011), wherein
Complainant first raised this assertion. The Agency noted, as it stated
in its earlier decision, that Complainant failed to provide information
sufficient to support her assertion that the agreement was void.
Additionally, the Agency noted that at the core of Complainant’s
noncompliance allegation is that the Agency did not promote her to the
GS-l1 level. The Agency noted that the agreement did not state that
the Agency would promote Complainant during her internship, but rather,
that the Agency would hire her for a position as Regulator Auditor
through the Federal Career Intern Program (FCIP), and that she would
be subject to a two-year probationary period beginning on her report date.
Finally, the Agency recommended that Complainant process her harassment
allegation in a separate complaint, in accordance with 29 C.F.R. §§
1614.105(a) and 1614.106(a), rather than as an allegation of breach
under 29 C.F.R. § 1614.504. In order to pursue a separate complaint,
the Agency advised Complainant to contact its Complainant Processing
Center in Oakland, California.
On appeal, Complainant states that under provision II.B. of the agreement,
the Agency was to offer her the Regulatory Auditor position as part of its
Federal Career Intern Program, subject to a two-year probationary period.
Complainant states while the Agency provided evidence it offered her a
Regulatory Auditor position, it did not offer her the Regulatory Auditor
position under its Federal Career Intern Program. Complainant argues
that the agreement is bound by the terms of Executive Order 13162-Federal
Career Intern Program of July 6, 2000. According to Complainant, Section
3(b) of this Executive order mandates "equal employment opportunity" for
Federal Career Interns. Complainant alleges that the Agency breached
the agreement by denying her equal employment opportunity during her
tenure as a Federal Career Intern when they denied her a workplace free of
non-sexual harassment. Complainant also argues that under the Executive
Order, the Agency was to provide her with an environment of mentoring,
substantial on-the-job training and teamwork. However, she states
that she was subjected to inadequate supervision, a lack of mentoring,
inadequate on-the-job training and harassment. Complainant contends that
the harassment was motivated by prejudice, discrimination and hatred due
to her race (Caucasian), sex (female), age (over 50) and in retaliation
for her 2008 EEO Complaint. Complainant claims the harassment began as
early as June 2010 and escalated through January 31, 2011 and beyond.
Moreover, Complainant alleges that the Agreement should be voided due
to the following factors related to formation: lack of good faith,
frustration of purpose, violation of public policy and lack of capacity
of the official who signed the agreement on behalf of the Agency.
In response to Complainant's appeal, the Agency notes that in accordance
with the agreement, Complainant was hired by and began work for the
Agency on October 13, 2009. The Agency notes that most of Complainant's
appeal concerns unsubstantiated allegations of acts of retaliation
and/or harassment which occurred subsequent to the execution of the
settlement agreement. The Agency states that even if these incidents
were found to be true, the claims should have been brought as separate
claims and not as a claim that the Agency breached the June 16, 2009
settlement agreement. Additionally, the Agency rejects Complainant's
contention that the settlement agreement should be void due to lack of
good faith, frustration of purpose, violation of public policy and lack
of appropriate agency authority.
ANALYSIS AND FINDINGS
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).
Title VII Claims
We note that in the present settlement agreement, Complainant settled
claims under both Title VII and the ADEA. Initially, we address
Complainant's contention that the Agency breached the settlement agreement
concerning her claims of discrimination under Title VII.
At the outset we note that Complainant contends that the June 16,
2009 settlement agreement is void for lack of good faith, frustration
of purpose, violation of public policy and lack of appropriate agency
authority. Complainant previously raised the same argument in a prior
appeal and the Commission determined the June 16, 2009 settlement
agreement should not be voided on those grounds. McMahon v. Department
of Homeland Security, EEOC Appeal No. 0120112007. Thus, we will not
re-examine this argument again.
In the present case, Complainant failed to show that the Agency breached
the terms of the June 16, 2009 settlement agreement. According to
provision II of the subject agreement, the Agency was required to present
Complainant with a conditional offer of employment for the position of
Regulatory Auditor at the GS-09 level. The agreement specified the offer
was contingent on Complainant completing all pre-employment requirements
and stated the offer was issued as part of the Agency's Federal Career
Internship Program (FCIP) whereby Complainant will be subject to a
two-year probationary period. As noted in McMahon v. Department of
Homeland Security, EEOC Appeal No. 0120112007, the record reveals the
Agency offered Complainant the Regulatory Auditor GS-09 position and
she began working in this position effective October 13, 2009. Thus,
we find the Agency complied with provision II of the agreement.
We note that Complainant contends that the Agency breached the agreement
when it subjected her to non-sexual harassment. Upon review, we note
that the incidents of alleged harassment all occurred subsequent to
the settlement of the present complaint and thus, the harassment claim
is considered a subsequent act of discrimination. We find the Agency
properly advised Complainant that her complaint of harassment should be
processed as a separate complaint of discrimination. The record reveals
the Agency advised Complainant to contact its Complaint Processing Center
in Oakland, California in order to pursue a complaint of harassment.
ADEA Claim
We note Complainant also contends that the Agency breached the
settlement agreement concerning her claims of discrimination under ADEA.
The Commission previously addressed this issue in McMahon v. Department
of Homeland Security, EEOC Appeal No. 0120112007. In that decision,
the Commission determined the subject settlement agreement failed to
comply with the waiver requirements under the Older Workers' Benefit
Protection Act (OWBPA) for age discrimination claims under the ADEA.
Thus, we do not address the same contention in this case.
CONCLUSION
Accordingly, the Agency’s decision finding no breach regarding the
resolution of Complainant's Title VII claims is AFFIRMED.
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), at 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 (S0610)
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 (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
April 11, 2012
__________________
Date
2
01-2012-1691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121693