01985911
03-31-2000
Mary Kruckenberg, Complainant, v. Janet Reno, Attorney General, Department of Justice, Immigration and Naturalization Service, Agency.
Mary Kruckenberg v. Immigration and Naturalization Service
01985911
March 31, 2000
Mary Kruckenberg, )
Complainant, )
)
v. ) Appeal No. 01985911
Janet Reno, ) Agency Nos. I-94-6560
Attorney General, ) I-94-6513
Department of Justice, ) I-94-6536
Immigration and Naturalization Service, ) I-93-6331
Agency. ) Hearing No. 320-95-8017X
________________________________________)
DECISION
On July 22, 1998, complainant filed the present appeal with the Commission
alleging that the agency had breached the settlement agreement entered
into by the parties.<1>
Complainant and the agency entered into a settlement agreement on August
4, 1995. The settlement agreement provided, in pertinent part, that:
. . . .
(2) The Agency will place the Complainant in a Freedom of Information
Act/Privacy Act Officer position at a GS 9 grade level in the Denver
District Office;
The Agency will give the Complainant a within grade increase in pay
retroactive to May 1, 1994;
. . . .
(5) The Agency agrees to remove all negative references to the
Complainant's performance from Complainant's personnel files including but
not limited to revising her last yearly performance evaluation to reflect
that her performance was fully successful, deleting any references to the
Performance Improvement Plan, removing any references to her proposed
dismissal, withdrawing a proposal for her demotion and removing any
references to unacceptable performance. Complainant hereby acknowledges
that a Fully Successful rating for her last yearly performance evaluation
is acceptable to her and that she will not file a complaint in any forum
regarding this rating.
. . . .
According to complainant she sent a letter to the agency dated February
18, 1998, alleging that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement the terms
of the agreement.<2> In this letter, complainant allegedly claimed
that the agency breached the terms of the settlement agreement during
another employee's Merit Systems Protection Board (MSPB) hearing in
which complainant testified, when the agency representative referred
to complainant's unsatisfactory performance appraisal. In addition,
complainant claimed that the agency breached the agreement when
complainant was asked to respond to a Labor Management Case.
The agency failed to respond to complainant's letter of noncompliance
and on July 22, 1998, complainant filed the present appeal.
In response to complainant's appeal, the agency argues that complainant's
appeal is inappropriately before the Commission because she failed to
exhaust her administrative remedies and the appeal is untimely and,
in the alternative, states that complainant failed to establish that
the agency violated the settlement agreement. The agency claims that
complainant mistakenly alleged noncompliance with a sub-component of
the agency (INS) and not with the agency itself (DOJ). In addition,
the agency argues that complainant failed to file a timely appeal
with the Commission. Specifically, the agency claims that under 64
Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.504(b)), complainant is required to appeal to the
Commission within thirty-five (35) days after she has served the agency
with allegations of noncompliance. Thus, the agency claims that assuming
complainant's allegation of noncompliance with the sub-component of the
agency on February 18, 1998, was sufficient, complainant's appeal to
the Commission on July 22, 1998, was four months late. Alternatively,
the agency argues that, assuming the Commission has jurisdiction in this
case and complainant's untimeliness should be waived, complainant failed
to establish that the agency violated the agreement. Specifically,
the agency concedes that during the MSPB hearing, the representative
asked complainant whether she received an unsatisfactory performance
appraisal while she was an Administrative Officer; however, the agency
claims that the representative knew these actions were taken because
of knowledge independent of the information contained in complainant's
personnel files. The agency representative notes in a signed statement
that as far as she is aware, complainant's personnel files have been
purged in accordance with the terms of the agreement. With regard to
complainant's claim that the agency breached the agreement by asking
complainant to respond to a Labor Management Case, the agency states
that there was no term in the agreement prohibiting such an assignment.
The record reveals that complainant first became aware of the alleged
noncompliance at a February 12, 1998 MSPB hearing. The record also
shows that complainant contacted the agency's Acting EEO Director
alleging noncompliance on February 18, 1998. We find that complainant's
filing with the sub-component of the agency is the same as filing with
the agency itself. Therefore, we reject the agency's contention that
complainant did not contact the EEO Director as required under Volume 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.504(a)). In addition, we find
that complainant's appeal was timely under 29 C.F.R. � 1614.504(b), which
states that a complainant may file an appeal thirty-five (35) days after
she has served the agency with allegations of noncompliance. Accordingly,
once a complainant serves the agency with an allegation of noncompliance,
she may file her appeal anytime after thirty-five (35) days of serving
the original notice of noncompliance with the agency. The Regulations
provide that in a case where an agency makes a determination with regard
to the complainant's allegation of noncompliance, the complainant must
file an appeal within thirty (30) days of her receipt of the agency's
determination. 29 C.F.R. � 1614.504(b). In the present case, since
the agency did not respond to complainant's allegation of noncompliance,
we find that complainant's filing of an appeal with the Commission more
than thirty-five (35) days after serving the allegation of noncompliance
with the agency was timely.
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 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).
With regard to complainant's allegations of noncompliance, we find that
the terms of the settlement agreement address the agency's removal
of all negative references to complainant's performance from her
personnel files, including deleting any references to an unacceptable
performance evaluation. In the present case, complainant claims that
the agency breached the terms of the settlement agreement when an agency
representative referenced complainant's unsatisfactory performance
evaluation at an MSPB hearing. In the present case, we find that when
an agency agrees to remove all references to complainant's negative
performance, the subsequent disclosure of any previous unsatisfactory
performance violates the settlement agreement. Thus, we find that the
terms of the agreement were breached by the agency representative's
questioning during the February 12, 1998 MSPB hearing. In addition,
we note that there is no evidence that the agency removed all negative
references to the complainant's performance from her personnel files.
With regard to complainant's allegation that the agency breached the
settlement agreement when it assigned complainant a Labor Management
case, we find that the agency did not breach the settlement agreement
in this instance. The terms of the agreement provide for the agency to
place complainant in a Freedom of Information Act/Privacy Act Officer
position at the GS 9 grade level. Complainant does not state that
the agency failed to place her in this position. Instead, complainant
challenges the type of assignment she has received at the GS 9 level.
We find that the types of assignments given to complainant in the GS 9
position is beyond the scope of the settlement agreement.
The agency's decision that it did not breach the agreement with regard
to the negative reference at the MSPB hearing is REVERSED and we REMAND
the matter. The agency's decision that it did not breach the settlement
agreement with regard to the assignment of work is AFFIRMED
ORDER
The agency shall specifically implement the terms of the August 4,
1995 agreement, in particular provision (5) thereof. Within thirty
(30) calendar days of the date this decision becomes final, the agency
shall complete compliance with the subject agreement, in particular all
negative references to complainant's performance should be expunged
from her personnel files. Further, the agency should insure that no
agency officials refer to the subject negative references in any forum.
A copy of documentation indicating the agency's compliance with this
Order must be submitted to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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:
March 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2We note that the record does not contain a copy of the February 18,
1998 letter.