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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