Kenneth T. Jones, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.

Equal Employment Opportunity CommissionDec 2, 2011
0120102495 (E.E.O.C. Dec. 2, 2011)

0120102495

12-02-2011

Kenneth T. Jones, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.




Kenneth T. Jones,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services

(Centers for Disease Control and Prevention),

Agency.

Appeal No. 0120102495

Agency No. HHS-CDC-0186-2009

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the Agency dated May 13, 2010, finding that it was

in compliance with the terms of the 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as

a Behavioral Scientist at the Agency’s facility in Atlanta, Georgia.

Believing that the Agency subjected him to unlawful discrimination,

Complainant contacted an Agency EEO Counselor to initiate the EEO

complaint process. On June 19, 2009, Complainant and the Agency entered

into a settlement agreement to resolve the matter. The settlement

agreement provided, in pertinent part, that:

(3) (A) The Agency shall pay Complainant a lump sum of $39,000.00 without

withholding taxes, sixty (60) calendar days from the execution of this

agreement.

(B) Complainant shall be responsible for any and all credit card

debts, fees, rents, and costs of any kind arising out of this long term

training that he has incurred up to and including June 19, 2009.

(C) In exchange for the Agency’s action set for in Paragraph 3A,

Complainant hereby agrees to withdraw his EEO complaint dated May 20,

2009.

(9) To the extent permitted by law, the Parties agree that the

facts of this resolution and all the terms contained herein shall be

kept confidential (emphasis in original), with the exception that those

officials and employees of the government who have a need to know of

the provisions of this Agreement may require access to the Agreement.

By email to the Agency dated November 23, 2009, Complainant alleged that

the Agency was in breach of the settlement agreement. Specifically,

Complainant argued that the Agency failed to keep the matter confidential.

Complainant indicated that he became aware that the Settlement Agreement

had been shared via email with another individual with the same name who

worked for the State of Florida. As such, Complainant indicated that

the confidentiality agreement had been breached. Complainant followed

up the email with a written letter to the Agency dated December 18, 2009,

Complainant asserted that it was brought to his attention on November 23,

2009, that the agreement was shared with an individual with the same name

as Complainant who worked with the Florida State Department of Health.

In its May 13, 2010 determination decision, the Agency concluded that

Complainant’s contact with the Agency regarding the alleged breach was

untimely. The Agency noted that the Settlement Agreement specifically

provided that Complainant was to notify the Agency of a claim of

breach within 30 days of the day he became aware of the alleged breach.

The Agency noted that the alleged breach occurred on June 23, 2009, when

Complainant and the Florida State employee were both listed as recipients

of an email which included a copy of the Settlement Agreement. As such,

Complainant was made aware of the alleged breach of the confidentiality

clause on June 23, 2009, when he received the email listing both himself

and the employee of the State of Florida. Therefore, the Agency found

that Complainant’s contact in November and December 2009 was untimely.

CONTENTIONS ON APPEAL

Complainant appealed asserting that he was not aware of the alleged

breach until November 23, 2009, following a series of inquiries he

made to the Agency. Further, Complainant indicated that the 30-day

time limit should be tolled to mitigate the Agency’s violation of

the confidentiality provision of the Settlement Agreement. The Agency

requested that we affirm its determination.

ANALYSIS

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).

Moreover, this regulation provides that if a complainant believes that

an agency has not complied with the terms of the settlement agreement,

Complainant shall notify an agency EEO Director, in writing, of the

alleged non-compliance within 30 days of the date that Complainant knew

of or should have known of the alleged noncompliance.

In the instant case, Complainant alleged that in an email dated June 23,

2009, the Agency transmitted the Settlement Agreement to Complainant and

the employee of the State of Florida with the same name as Complainant.

It is undisputed that Complainant received the June 23, 2009 email, and

he has made no assertion that he received following any significant delay.

It is also undisputed that Complainant received the $39,000 owed him under

the terms of the settlement agreement on June 26, 2009. Complainant did

not raise his breach allegations until November 23, 2009, via email,

and December 18, 2009, via letter. The Commission determines that the

breach allegations are untimely raised, and Complainant does not set

forth any arguments in his initial allegations or on appeal addressing

his delay in raising a breach claim.1

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

we AFFIRM the Agency's final decision.

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

December 2, 2011

__________________

Date

1 We note that had Complainant timely informed the Agency of the

alleged breach, unfortunately, there would be no practical way to

undo the harm caused by the release of the Settlement Agreement to

the employee of the State of Florida. Where a breach is found and an

order of specific performance is not possible, the only remedial relief

available is reinstatement of the complaint settled by the agreement for

further processing. However, if the complaint is reinstated for further

processing, then the parties must be returned to the status quo ante at

the time that the parties entered into the Settlement Agreement, which

would require that Complainant return any payments or benefits received

pursuant to the Settlement Agreement. See, e.g. Amour v. Dep’t of

Defense, EEOC Appeal No. 01965593 (June 24, 1997); Komiskev v. Dep’t

of the Army, EEOC Appeal No. 0119955696 (September 5, 1996).

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0120102495

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120102495