0520140553
03-15-2017
Mike T.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Mike T.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520140553
Appeal No. 0120122693
Agency No. HS-CBP-00285-2011
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120122693 (June 10, 2014). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criterion of 29 C.F.R. � 1614.405(c)(1), and it is the decision of the Commission to GRANT the request.
ISSUE PRESENTED
Whether the appellate decision involved clearly erroneous interpretations of material fact or law when it found that the Agency breached its settlement agreement with Complainant.
BACKGROUND
Complainant formerly worked as a Project Manager at the Agency's Office of Information Technology in Washington, D.C. On November 19, 2010, Complainant was terminated during his probationary period for falsely identifying himself as a supervisor of a contract employee, and, using Agency letterhead, recommending that the employee receive a promotion. Complainant initiated informal EEO counseling alleging that he was discriminated against on the basis of race (Black). His complaint was resolved through a settlement agreement on January 19, 2011.
The relevant portion of the settlement agreement provided:
1. [The Agency will r]emove, within 45 calendar days of the effective date of this Agreement, the termination action (SF-50), and any references to the termination action, from Complainant's Official Personnel Folder (OPF) and replace it with a new Notice of Personnel action (SF-50) reflecting "resignation for personal reasons;" and
2. The Agency and the Complainant agree that the fact of this Agreement and the terms contained herein shall not be publicized in any manner except as is necessary for the parties to carry out the terms of the agreement, or as required by law, regulation, or court order.
In 2011, Complainant applied for a Business Operations Specialist position with the Agency, and received a conditional job offer on November 18, 2011. His offer was contingent on passing a background investigation. On November 30, 2011, Complainant signed an Authorization for Release of Information (Release), that allowed the Agency to obtain any information including, but not limited to, disciplinary and employment history information for the purpose of making a determination of his suitability or eligibility for a national security position. The agreement also authorized custodians of such records to release the information upon request from an investigator. On January 4, 2012, Complainant's former supervisor (FS) and a Human Resources Specialist were interviewed about Complainant.
In a letter dated February 28, 2012, the Agency notified Complainant that it was proposing to withdraw its conditional offer of employment because "derogatory information" was discovered, and that his "employment records" showed that he resigned from the Agency in lieu of termination. Complainant was provided fifteen calendar days to explain the circumstances surrounding his termination before a final decision was made. The record does not contain evidence that Complainant submitted a response to the letter from the Agency.
On March 16, 2012, the investigator conducting Complainant's suitability determination emailed a contact in the Office of the Chief Counsel asking if Complainant's termination/resignation could be used in making the suitability determination. On March 28, 2012, the investigator was informed that she could rely on Complainant's underlying conduct in making a suitability determination. Subsequently, Complainant received the final notice that the job offer was withdrawn.
On March 26, 2012, Complainant alleged that the Agency breached the settlement agreement. He argued that the Agency failed to remove references to his termination and publicized the terms of the agreement. The Agency issued a letter of determination finding no breach of the settlement agreement on May 10, 2012. The Agency stated that it provided documentation showing that Complainant's SF-50 was replaced with one which showed that he resigned for personal reasons by March 20, 2011. The Agency also stated that there was no breach because Complainant waived his right to enforce the non-disclosure provision when he executed the Release with his application for the Business Operations Specialist position.
Complainant appealed the Agency's determination to the Commission. In the appellate decision, the Commission found that the Agency did not comply with the settlement agreement because the record did not support the Agency's claim that it replaced Complainant's SF-50 as of March 2012. Additionally, the Commission found that the Agency had not met its burden to show that the release of Complainant's information was consistent with the terms of the settlement agreement. The Commission ordered the Agency to give Complainant the option of either reinstating his underlying EEO complaint, or specifically enforcing the terms of the settlement agreement.
On request for reconsideration, the Agency contends that the appellate decision involved clearly erroneous interpretations of material facts and law. Specifically, the Agency argues that: (1) the record supports that it changed Complainant's SF-50; (2) Complainant waived the non-disclosure provision of the settlement agreement; and (3) the appellate decision is contrary to prior Commission precedent. The Agency also argues that the Commission erred when it placed the burden of proving a breach of the settlement agreement on the Agency, rather than on Complainant.
The Agency also alleges that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency because the decision: (1) could be read to imply that the settlement agreement obligated the Agency to expunge any information related to Complainant's removal from all the Agency's records, and not just the OPF; (2) curtails the Agency's ability to conduct thorough and accurate background investigations of employees and job applicants who have entered into similar settlement agreements; and (3) chills the Agency's ability to enter into settlement agreements in the future that allow for employees to resign in lieu of termination if the end result is that the Agency is unable to conduct appropriate background checks or is unable to fully cooperate in background investigations of former employees.
In response, Complainant asserts that the appellate decision was correct, and requests that the request for reconsideration be denied.
ANALYSIS
Upon review of the entire record, the Commission finds that the appellate decision involved clearly erroneous interpretations of material facts or law when it found that the Agency breached the settlement agreement, and GRANTS the Agency's request for reconsideration.
Settlement Breach
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 (Dec. 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 (Aug. 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 (Dec. 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 settlement breach cases, the burden is always placed on the party alleging breach to establish that a breach has occurred. See Porter v. U.S. Postal Serv., EEOC Appeal NO. 01A54699 (Dec. 20, 2005).
Replacement of Complainant's SF-50 in his OPF
The Agency argues and the record shows that the Agency complied with the settlement agreement because it replaced Complainant's SF-50 on March 10, 2011, and that his OPF reflected the updated SF-50 by March 20, 2011. The record contains a copy of Complainant's updated SF-50 noting that he resigned due to personal reasons, with a handwritten note at the top which reads "Copy mailed to employee 3/10/11." Accordingly, we find that the appellate decision contains a clearly erroneous interpretation of material fact when it stated that the Agency had not changed Complainant's SF-50 as of March 2011.
While we note that the Agency did not replace Complainant's SF-50 within the 45-day time-frame outlined in the settlement agreement, it did replace Complainant's SF-50 fifty calendar days after the agreement took effect. Failure to perform in accordance with deadlines specified in a contract does not necessarily constitute a breach of contract. Time is not ordinarily of the essence in a contract unless made so by express stipulation or unless there is something connected with the purpose of the contract and the circumstances surrounding it which makes it apparent that the contracting parties intended that the contract must be performed at or within the time named. Garzino v. Dep't of the Army, EEOC Appeal No. 0120072847 (Sept. 27, 2007). Failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance, especially when all required actions were subsequently completed, and the complainant has not shown that he was harmed by the delay. Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996). Accordingly, we find that the slight delay in complying with the settlement agreement does not constitute a breach of the agreement.
The Agency further alleges that Complainant's "employment records" referenced in the February 28, 2012, letter were not limited to Complainant's OPF, and that other records maintained by the Agency are not necessarily included in an employee's OPF. According to the Agency, the settlement agreement did not provide that the Agency remove all references to Complainant's termination, such as that contained in records maintained by the FS or the Office of Human Resources. In reviewing the terms of the settlement agreement, we find that the intent of the parties, as expressed in the contract, was to remove Complainant's old SF-50 and any references to the termination action from his OPF and insert a new SF-50 reflecting "resignation for personal reasons," not the unexpressed intention to remove all traces of his removal from all Agency records. As such, the plain meaning of replacing Complainant's SF-50 with a new SF-50 in his OPF controls the contract's construction, and we find that Complainant has not shown that the Agency breached the settlement agreement because the record shows that the Agency replaced his SF-50 with one that states that he resigned for personal reasons in March 2011.
Non-disclosure provision
In regards to the non-disclosure provision of the settlement agreement, we find that the appellate decision contains a clearly erroneous interpretation of material fact, and we find that Complainant has not shown that the Agency breached the non-disclosure provision of the settlement agreement. The plain language of the agreement allows its terms to be publicized when, among other things, it is required by law or regulation. In the instant case, Complainant signed the Release as part of the application process for the Business Operations Specialist position, giving the Agency permission to release pertinent information to determine his suitability for the position. As part of a suitability determination, an investigation was conducted, and one of the factors considered was prior misconduct or negligence in employment. See 5 C.F.R Part 731.202(b)(1). The Agency provided information related to Complainant's prior misconduct, as required by federal regulations and the terms of the agreement itself.
We also note the Agency's contention that Complainant waived his right to non-disclosure when he signed the Release, and agreed to the release of information "regardless of any previous agreement to the contrary." Because we find the Agency's actions were consistent with the settlement agreement, we do not find it necessary to address this contention herein.2
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. The decision of the Commission in EEOC Appeal No. 0120122693 is REVERSED. The Agency's letter of determination dated May 10, 2012, is AFFIRMED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. The Agency is not required to comply with the Order set forth in EEOC Appeal No. 0120122693.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
_3/15/17_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Because of our decision above, we also find no need to address the Agency's assertions that the appellate decision is inconsistent with prior precedent and that it will have a substantial impact on the Agency's policies, practices, or operations.
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