0120121692
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. 0120121692
Agency No. HS-08-CBP-004380
DECISION
Complainant filed an appeal with this Commission concerning her claim that
the Agency failed to comply 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 March 7, 2011, Complainant claimed the
Agency breached paragraph II.B. of the agreement when it cancelled her
scheduled training on February 4, 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.
Complainant then filed an appeal with the Commission on April 25, 2011.
In her brief in support of her 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. Complainant states that under Section 5 of the Executive
Order, a Career Intern shall participate in a formal training program and
job assignments to develop competencies that OPM identifies as core to
the Program and the employing Agency identifies as appropriate to the
Agency’s mission and needs. Complainant states that the Office of
Regulatory Audit together with the Office of Training and Development
identified the course “Assessing the Reliability of Data” as being
core to the Program and scheduled all interns to take this course.
Complainant claims that she was pulled out of the class in February
2011 and that this breached the settlement agreement. Complainant also
alleges that the Agency’s actions violated Section 3(b) of Executive
Order 13162 which states that OPM shall provide such actions as deemed
appropriate to assure equal employment opportunity.
In response to Complainant's appeal, the Agency states that in accordance
with the settlement agreement it hired Complainant as a Regulatory
Auditor pursuant to the Federal Career Intern Program. With regard to
Complainant's claim that the Agency violated Executive Order 13162, the
Agency notes that Executive Order 13162 is not specifically mentioned in
the agreement. Thus, the Agency argues that Complainant's claims with
respect to Executive Order 13162 are outside the scope of the agreement.
Moreover, the Agency states that even if the Executive Order was found
to be within the scope of the agreement, Complainant has not proferred
any evidence to suggest that the Agency violated it. The Agency notes
that Complainant has stated that one of her training sessions, out of
a number of trainings she received, was cancelled. The Agency argues
that this, without more, does not substantiate Complainant's claim that
the Agency violated Section 5 of Executive Order 13162.
The Agency recognizes that Complainant also claims the Agency violated
Section3(b) of Executive Order 13162 which states that “[i]n developing
[merit based procedures for the recruitment, screening, placement,
and continuing career development of Career Interns], the OPM shall
provide for such actions as deemed appropriate to assure equal employment
opportunity and the application of appropriate veterans’ preference
criteria.” The Agency notes that to the extent Complainant is alleging
the Agency retaliated or discriminated against her, those claims should be
brought as separate claims and not as claims that the Agency breached the
agreement. The Agency notes that if Complainant wishes to pursue these
matters through the EEO process, she should contact an EEO Counselor.
With regard to Complainant’s assertion that the agreement is void, the
Agency notes Complainant made the same argument in her first complaint
alleging breach. The Agency states that it previously addressed these
contentions in its prior decision on her first breach claim.
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. Dept’t
of Homeland Security, EEOC Appeal No. 0120112007. Thus, we will not
re-examine the arguments again.
In the present case, we find 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. Dep’t 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.
With regard to her contention that the Agency breached the settlement
agreement when management cancelled her scheduled training on February 4,
2011, we note that the settlement agreement did not require any specific
training be afforded Complainant. Moreover, we note that the cancellation
of Complainant's training is considered a subsequent alleged act of
discrimination. We find the Agency properly advised Complainant that
her claim surrounding the cancellation of training should be processed as
a separate complaint of discrimination. The record reveals Complainant
was advised to contact an EEO Counselor to pursue this claim.
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. Dept’t
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
01-2012-1692
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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