0120122030
09-26-2012
Marvin Copeland, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Marvin Copeland,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120122030
Agency No. OCFO200700910
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 31, 2012, 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 Computer Assistant at the Agency's National Finance Center in New Orleans, Louisiana.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 21, 2008, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
The Agency agrees to rescind and remove the SF-50 annotating [Complainant's] 8-day suspension for Negligent Workmanship, effective September 30, 2007, to October 7, 2007, from Complainant's Official Personnel Folder.
By e-mail correspondence to the Agency dated September 16, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to remove the SF-50 referencing the 8-day suspension from his Official Personnel File (OPF), which he ostensibly discovered about 20 days prior to the September 16, 2011 e-mail. Further, Complainant contended that he subsequently received (via e-mail) a compliance packet with his OPF which contained forms referencing the suspension as of the morning of March 1, 2012, therefore placing the Agency in breach of the agreement. Complainant noted that the Agency's purported breach has caused him hardship, consisting of embarrassment and missed job opportunities. As a remedy, Complainant is seeking compensation for "1/3 of my present salary for 3.5 years."
In its March 31, 2012 FAD, the Agency determined that no breach occurred because all terms of the settlement agreement were met. An Agency letter, dated February 16, 2011, stated that the documents referencing Complainant's 8-day suspension were removed from his OPF. The Agency offered a screenshot of Complainant's OPF into evidence, sent in an e-mail dated September 26, 2011, which does not list the SF-50 effective September 30, 2007, among its contents.
The Agency noted that Complainant did not provide sufficient evidence to show that the Agency had breached the settlement agreement in his e-mail dated March 1, 2012, nor in the supporting documents. The Agency noted that the documents submitted by Complainant are not labeled as part of his OPF, and the burden is on Complainant to show that the documents were part of the OPF. Further, the Agency asserted that Complainant did not provide sufficient details in addition to the September 16, 2011, e-mail to describe how he discovered that the suspension was still contained in his OPF, nor did he provide documentation supporting his allegation at that time, other than his own assertion that the Agency failed to remove the suspension.
Based on the evidence contained in the record, the Agency concluded that Complainant has not
shown that it is in breach of the settlement agreement. Although the Complainant alleged that the SF-50 in question was still in his OPF and included the SF-50 in evidence, the Agency argued that it cannot be ascertained whether the document was, in fact, still part of the OPF, or whether the document was added from Complainant's personal records, or some other source.
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).
Here, the record reflects that Complainant left the Agency in March 2008. The settlement agreement at issue was executed in August 2008, five months after Complainant had left the Agency. Complainant was later employed by the Government Printing Office (GPO). The record further reflects that the Agency changed Complainant's OPF, showing that Complainant's 8-day suspension was removed. The Agency's adjustment of Complainant's OPF, however, may not have been registered with GPO. Nonetheless, once this issue was brought to the Agency's attention by Complainant in 2011, the Agency worked with GPO to ensure that Complainant's OPF was in compliance with the settlement agreement. Supporting documentation is contained in the record.
As noted by the good-faith efforts of the Agency detailed above, the Commission finds that Complainant has not shown that the Agency has breached the settlement agreement at issue. Recognizing that Complainant details his own account in his appeal letter, the Commission is not swayed in finding that the Agency has breached the settlement agreement in this matter.
CONCLUSION
Accordingly, the Agency's final decision finding no settlement breach 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
September 26, 2012
__________________
Date
2
0120122030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122030