Patsy F. Bennett, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionDec 23, 2003
01A30803_r (E.E.O.C. Dec. 23, 2003)

01A30803_r

12-23-2003

Patsy F. Bennett, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Patsy F. Bennett v. Department of Defense

01A30803

December 23, 2003

.

Patsy F. Bennett,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A30803

Agency No. OIG-01-07

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated October 25, 2002, finding that it was in

compliance with the terms of the May 21, 2001 settlement agreement into

which the parties entered.

The settlement agreement provided, in pertinent part, that:

Therefore the parties agree as follows:

The Agency promises and covenants to allow the Employee to resign from

federal service (preserving all her rights to employment benefits to

which she shall be entitled as of her resignation date) without reference

to the decision to remove her. Responses to any inquiries directed

to the Agency from prospective employers of the Employee shall contain

neutral language in the form annexed hereto as �Exhibit A,� referred to

in the vernacular as a �clean paper� resignation. Exhibit A shall be

maintained by [Person A], Director, Investigative Operations, to whom

the Employee can refer prospective employers in order to effectuate this

portion of the Agreement. If any employees of the Agency other than

[Person A] are contacted by a prospective employer, such employee will

provide truthful answers to any specific questions asked of them.

. . .

All references to the proposal to remove Employee shall be removed from

her official personnel folder. Records of the proposal and supporting

documentation will be retained by the Agency, subject to Privacy Act

protections, in the adverse action files of the Agency's Employee

Relations Division and by the Washington Headquarters Services, Office

of General Counsel.

Notwithstanding anything to the contrary contained herein, in the

event the Employee applies for a position with a federal agency as a

criminal investigator or police officer and the prospective employer

makes inquiry of the Agency with respect to �Giglio� issues, the Agency

shall be entitled to disclose such matters to a prospective employer.

By letter to the agency dated September 17, 2002, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant noted that she began working with another agency, the

Transportation Security Administration (TSA), in April 22, 2002.

Complainant stated that in May 2002, she learned that the Secretary of

Transportation received a written inquiry from Senator Charles Grassley's

office regarding her departure from the agency and subsequent employment

by TSA. Thereafter, complainant stated that TSA advised her on August

14, 2002, that her employment with TSA was terminated based on her

untruthful answer to a question regarding her past separations from

employment. Complainant alleged that her separation from TSA was based

on correspondence from Senator Grassley which was a direct result of

correspondence from the agency in violation of the settlement agreement.

In its October 25, 2002 decision, the agency concluded that it did not

breach the terms of the May 21, 2001 settlement agreement. The agency

noted that under the agreement it agreed to provide a neutral letter

of reference to any prospective employer who contacted Person A for

references. The agency noted that the agreement provides that any agency

employees other than Person A who are contacted by prospective employers

will provide truthful answers to any specific questions asked of them.

The agency also noted that under the agreement, it reserved the right to

disclose matters with respect to �Giglio� issues in the event complainant

applied for a position as a criminal investigator with a Federal agency.

The agency noted that TSA contacted it for suitability information after

complainant had been hired for the position of Criminal Investigator,

SV-1811-J. The agency stated that the settlement agreement provided

that records of the proposed removal and supporting documentation would

be retained by the agency, subject to Privacy Act protections. Thus, the

agency stated that when TSA requested information regarding complainant's

suitability and security clearance, the agency was obligated te release

her employment records. The agency stated that the release of this

information to another federal agency for the purpose of a suitability

investigation is a routine use permitted by the Privacy Act.

On appeal, complainant explains that she was hired by TSA in April

2002, and she claims that approximately six weeks later she learned

that the Secretary of Transportation had been contacted by Senator

Charles Grassley's office regarding complainant's employment at TSA.

Complainant states that TSA never contacted the agency in regards to

her past employment. Instead, she alleges that someone at the agency

went to see the Senator.

In response to complainant's appeal, the agency reiterates its position

that it did not breach the terms of the May 21, 2001 settlement agreement.

The agency notes that the TSA contacted its Personnel and Security

Directorate, not Person A, to obtain any �suitability and security

information� the agency might have available. The agency states that its

Personnel and Security Directorate responded with a truthful account of

complainant's security history and the circumstances of her resignation.

The agency argues that nothing in the agreement precludes it from

providing any information about complainant to a subsequent employer.

The agency notes that at the time TSA contacted the OIG Personnel and

Security Directorate, complainant had already been hired. The agency

claims that even if complainant had been a prospective rather than

current employee of TSA, paragraph (1) of the agreement states that

requests for information addressed to agency employees other than Person

A would be answered truthfully. The agency also notes that paragraph

(4) of the agreement states that in the event that complainant were to

seek employment as a criminal investigator with another federal agency,

OIG employees would respond truthfully to any inquiries relating to

complainant's reliability. Additionally, the agency notes that paragraph

(3) states that the agency will retain copies of the proposal and decision

notices subject to the provisions of the Privacy Act. The agency states

that the disclosure by the Personnel and Security Office was made pursuant

to a routine use exception under the Privacy Act under 61 FR 36919, 36927.

The agency states that on the face of the agreement, it did not intend to

conceal the nature of complainant's conduct if anyone other than Person A

were asked, if complainant's credibility as an investigator testifying in

a criminal case were at issue, or if the information was disclosable under

the Privacy Act. Finally, the agency argues that even if complainant's

allegation that someone at OIG initiated the inquiry by disclosing facts

to a Congressional staffer, such a disclosure would not constitute a

breach of the agreement by the agency. The agency states that it cannot

enter into an agreement which would prevent individuals from disclosing

to Congress instances of abuse by government officials. Further, the

agency states that it cannot withhold information from Congress relating

to Congressional oversight pursuant to 5 U.S.C. � 552a(b)(9).

The record contains a May 30, 2002 letter from TSA to Person B of

the agency's Personnel and Security Directorate, Workforce Relations

and Development Division. In this letter, TSA states that it is in

the process of determining eligibility for access to national security

information on complainant. TSA informs that complainant has been hired

as an Inspector and requests a check of the agency's indices and records

be conducted and that TSA be provided with any suitability and security

information available regarding complainant.

The record contains a response from the agency's Director of Personnel

and Security responding to the TSA's May 30, 2002 request. The agency

indicated that complainant received a Notice of Proposed Removal for

conduct unbecoming a Federal employee on February 6, 2001. The agency

further noted that on April 25, 2001, complainant received a Notice

of Decision on Proposed Removal. The agency response indicated that a

copy of both the Notice of Proposed Removal and the Notice of Decision on

Proposed Removal were provided to TSA. The agency stated that complainant

resigned on April 26, 2001. Further, the agency stated that on May

21, 2001, complainant entered into an EEO settlement agreement which

allowed her to resign from the agency for the stated reason �in order

to pursue employment elsewhere,� and without reference to the decision

to remove her.

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).

In the present case, we find that complainant has failed to show that

the agency breached the May 21, 2001 settlement agreement. According to

provision (1) of the agreement an agency employee, other than Person A,

who was contacted by a prospective employer is permitted to provide

truthful answers to any specific questions asked of them. The record

in the present case indicates that TSA's May 30, 2002 inquiry regarding

complainant was not made to Person A, but rather, to Person B of the

agency's Personnel and Security Directorate. We find that even if TSA

was considered a prospective employer, the agency did not violate the

agreement when Person B provided truthful answers to a specific request

from TSA regarding suitability and security information.<1> Further,

we find that complainant has failed to show that the agency made a

disclosure to Senator Grassley in violation of the settlement agreement.

Accordingly, the agency's final decision is AFFIRMED.

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 (S0900)

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 (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

December 23, 2003

__________________

Date

1Complainant indicates in a January 17, 2003 Motion to Continue that

she has filed an EEO complaint against TSA regarding her August 14,

2002 removal. Although complainant requests that the Commission hold

the present case in abeyance pending the outcome of her complaint against

TSA, we find that such action is inappropriate as the two cases are not

inextricably interrelated.