0120081289
03-27-2008
Leslie Warfield, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Leslie Warfield,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120081289
Agency No. 200620404FAA01
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 13, 2007, finding that it
was in compliance with the terms of the October 31, 2007 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.
The settlement agreement provided, in pertinent part, that the agency
would:
(1) Not later than 15 days following the date of the conversion
of the suspension from 10 days to 5 days, expunge from Complainant's
official personnel folder (OPF) all records of complainant's suspension
to the extent that such expunction does not violate any applicable record
retention requirements that cannot be overriden by the terms of an EEO
settlement.
(2) Confirm the removal of these documents from Complainant's OPF
within 30 days from the removal of these documents or in the event that
such removal of these records cannot be overriden by this EEO settlement,
the Agency shall so advise complainant within 60 days.
By letter to complainant dated December 13, 2007, the agency
notified complainant that it was unable to comply with the agreement.
Specifically, the agency said that pursuant to the Office of Personnel
Management's Guide to Processing Personnel Actions, records of suspensions
could not be expunged from Complainant's official personnel file.
Furthermore, the agency said, since the records could not be expunged,
complainant's time and attendance records would have to reflect her
suspension. Complainant notified the agency of the breach and requested
that the agency specifically implement the terms of the agreement.
The record contains no response from the agency.
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 agency contends that it is unable to comply
with the agreement. The agency, however, has not satisfied its burden
of proof of establishing, by a preponderance of the evidence, that
OPM regulations prohibit the agency from complying. In this regard
we note that the record does contain a copy of the agency's Collective
Bargaining Agreement which addresses disciplinary actions. That document
contains language that contradicts the agency's contention that records
of disciplinary actions cannot be removed from an employee's records.
See NATCA, Article 10, � 6(b). Because the agency has failed to provide
evidence to support its claims, we find the agency to be in breach of
the agreement. Under the Commission's regulations, in the event of a
finding of non-compliance, the Commission may, in its discretion, remedy
the breach by either ordering the agency to reinstate the underlying
complaint for processing, or alternatively, to undertake specific
performance of the breached provision. See 29. C.F.R. � 1614.504(c).
Here, because the agency has complied with the other provisions of the
agreement, and the Commission favors the settlement of complaints, we
find that specific performance is the appropriate remedy. Accordingly the
matter is REMANDED to the agency in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following actions:
1. Within 30 days of this decision becoming final, the agency is
ordered to expunge from complainant's official personnel folder (OPF)
all records of complainant's suspension and adjust the time records to
show 5 hours leave without pay as necessary, and confirm the removal of
these documents from complainant's OPF to complainant.
A copy of all relevant documentation reflecting that complainant's
suspension has been expunged from her OPF must be sent to the Compliance
Officer as referenced below
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
March 27, 2008
__________________
Date
2
0120081289
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081289