0120103485
03-08-2013
Mohamad Kazan, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Mohamad Kazan,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120103485
Agency No. HS06CBP000071
DECISION
Complainant timely filed an appeal with this Commission after the Agency failed to produce a final decision (FAD) regarding whether 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
Complainant previously worked as a Customs and Border Patrol Officer at the Agency's Detroit Metropolitan Airport, Romulus facility in Detroit, Michigan. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Complainant alleged that the Agency terminated him from federal service on October 12, 2005, because of his religion (Islam), national origin (Lebanese) and race (Arabic-American). On December 20, 2005, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2) (a) The Agency would withdraw Complainant's Letter of Termination.
(b) Expunge Complainant's Termination action dated October 12, 2005, from the Official Personnel Folder (OPF) and replace it with the Resignation effective October 12, 2005.
(c) The Agency will change the Complainant's notice of personnel action, an exception to SF50, Employee Transcript Termination of Employment to reflect a resignation for personal reasons
(4) The Agency and Complainant agree that the facts 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.
On April 26, 2010, Complainant received a removal letter from the Department of Veterans Affairs (VA). Complainant alleged that his removal was in violation of the settlement agreement he had entered into with the U.S. Customs and Border Protection in 2005. Complainant indicated that contrary to the settlement agreement, the Agency had verbally disseminated information regarding Complainant's removal. By letter to the Agency dated July 20, 2010, 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 has repeatedly released information regarding Complainant's termination despite a "clean record" agreement. Complainant contends that the Agency released information to the Office of Personnel Management, the U.S. Department of Justice, the United States Marine Corps and the Veterans Administration. Complainant contends that the Agency's failure to provide the clean record agreed upon has caused him substantial damages.
When the Agency did not provide a FAD in response to Complainant's Letter of Notification regarding breach of the settlement agreement, Complainant filed an appeal on August 23, 2010, with the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency has continued to publicize the fact that he was terminated despite the terms of the settlement agreement where the Agency agreed to withdraw Complainant's letter of termination, expunge the termination, replace it with a resignation, and to not publicize it in any manner. Complainant asserts that as a result of the Agency providing information regarding the termination he has been unable to obtain a position in law enforcement.
Complainant requests that his EEO complaint be reinstated.
In response, the Agency contends that Complainant's appeal should be dismissed on the following grounds: (1) Complainant failed to follow proper procedures when he did not notify the Agency that he believed that the Agency had breached the settlement agreement and filed an appeal directly with the Commission; (2) Complainant's appeal is untimely; and (3) the Agency did not breach the settlement agreement. With regard to matter number (3), the Agency argues that even if the Commission finds that it has jurisdiction, it did not breach the settlement agreement. The Agency maintains that it complied with its obligations and withdrew, expunged, and replaced the termination with the resignation. The Agency also asserts that the agreement does not prohibit dissemination of information. The Agency maintains that the settlement agreement provided that neither party would publicize the terms of the agreement except "as required by law, regulation, or court order." Nothing in the agreement, the Agency maintains prohibited the Agency from disseminating information regarding Complainant's removal if it is required to do so by law, regulation, or court order. The Agency explains that the agreement does not prohibit it from releasing information concerning misconduct or results of investigations if the Office of Personnel Management seeks such information during the course of a background investigation.1
Thus, while Complainant attempts to interpret the agreement as to prohibit the Agency from disseminating any information related to the reasons behind his termination/resignation, the Agency contends that such an interpretation should have been reduced to writing as part of the agreement. The Agency argues that based on its obligations with regard to background checks such information was ripe for dissemination.
Complainant responded to the Agency's contentions by forwarding documentation that showed that on July 20, 2010, he sent a letter to the Agency notifying it that it was in noncompliance with the settlement agreement.
ANALYSIS
At the outset, we find that the evidence does not support the Agency's contentions that Complainant's appeal is procedurally flawed and untimely. Complainant produced his July 20, 2010, Letter of Noncompliance to the Agency. His appeal to the Commission was filed August 23, 2010. Although the appeal was filed 34 days after service on the Agency, not the required 35 days, we find it appropriate to address this matter on its merits in light of the fact that the Agency had an opportunity and did address Complainant's allegation of non-compliance.
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).
There is no dispute that the Agency has complied with provision (2) of the settlement agreement. Therefore, we find that there was no breach with regard to this provision. With respect to provision (4), we find that the plain meaning of this provision is that the existence of the settlement agreement and its terms would not be disclosed unless one of the exceptions applied, i.e., disclosure was required by law, regulation, or court order. This provision, however, contrary to Complainant's contention otherwise, does not state that the Agency could never reveal to prospective employers allegations of misconduct or the results of investigations conducted by DHS concerning Complainant. If Complainant wanted to ensure that prospective employers who contacted the Agency about his job history were only provided "clean" information then a procedure to accomplish this should have been expressly set forth in the settlement agreement itself.
CONCLUSION
Accordingly, we find no breach of the settlement agreement.
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), 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
___3/8/13_______________
Date
1 An MSPB initial decision dated June 29, 2009, upheld the Department of Justice determination finding Complainant unsuitable for federal employment based on the incidents at the Agency.
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0120103485
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103485