0120070249
04-09-2009
Rachel McCarthy, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Rachel McCarthy,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070249
Agency No. I-03-H022
Hearing No. 160-2003-08548X
DECISION
Complainant filed a timely appeal with this Commission after informing
the agency that it was not in compliance with the terms of the January 9,
2004 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
ICE will restore one hundred and forty-four (144) hours of sick leave
and thirty six point three (36.3) hours of annual leave to Complainant
as soon as practicable, but in any case, not later than six (6) full pay
periods following the date on which all necessary parties have signed
this Agreement.
The parties agree that the existence of this Agreement and its terms
shall not be disclosed except as is necessary for the parties to carry
out the terms of the Agreement or otherwise required by any court order,
law, rule, or regulation...
By letter to the agency dated August 18, 2006, complainant alleged
that the agency was in breach of the settlement agreement. Complainant
stated that the existence and specific terms of the settlement may have
been disclosed by the EEO Specialist to at least six agency employees.
Complainant requested that the agency identify all employees who received
such disclosure and provide a specific explanation as to why it believed
such disclosure was necessary for it to carry out the terms of the
agreement.
The agency did not respond to the allegation of breach within thirty days
and complainant subsequently filed the instant appeal to the Commission.
On appeal, complainant contends that the agency needlessly distributed
information about the terms of the settlement agreement to multiple
agency employees several years after the agreement had been signed and
implemented. Complainant states that the agency has not explained why it
sought confirmation that the agreement had been implemented given that
its records were clear that her leave balances had been corrected and
she had not filed any allegations of breach. According to complainant,
the EEO Specialist sent an electronic mail message to an agency employee
requesting documentation of compliance with the agreement. Complainant
states that the latter employee directed the EEO Specialist to contact
another agency employee for the documentation. Complainant states
that this employee added another agency employee to the electronic mail
message chain when he responded to the EEO Specialist. Complainant claims
that the added employee contacted her current timekeeper to ask her to
check her time and attendance file for documentation relating to the
restored leave. According to complainant, the EEO Specialist then sent
an electronic mail message to the timekeeper and informed her that she was
trying to show that the agency complied with the terms of the settlement.
Complainant notes that the timekeeper included her Supervisor in her
response to the EEO Specialist and that the EEO Specialist included her
former timekeeper on her response electronic mail message.
Complainant maintains that the EEO Specialist should have initially
contacted her or her attorneys or accessed her time and attendance records
through the online recordkeeping system or requested the information
from other employees without stating the specific reasons behind the
request or including the terms of the agreement in the electronic
mail message. Complainant notes that as a result of the agency's
actions, her Supervisor and timekeeper were made aware that she was
placed in her current position as a result of the settlement agreement.
Complainant contends that these employees had no need to be made aware
of the agreement or her prior EEO activity.
In response, the agency asserts that it did not breach the settlement as
the EEO Specialist is responsible for ensuring agency compliance with
settlement agreements. The agency states that on December 12, 2005,
the EEO Specialist initially contacted officials in the unit from which
complainant was reassigned. Upon learning that complainant had been
reassigned to a component within the U.S. Citizenship and Immigration
Services (CIS), the agency states that the EEO Specialist sought
assistance from staff in the Office of the Chief Counsel as to obtaining
proof that the agency had complied with the agreement. The agency states
that the Chief of Staff in the Office of the Chief Counsel contacted a
Personnel Assistant and that the Personnel Assistant advised the EEO
Specialist that complainant's timekeeper had checked her records and
found that the leave at issue should have been restored. The agency
notes that the EEO Specialist directly contacted the timekeeper about
the leave question. According to the agency, the timekeeper copied her
Supervisor in order to keep her apprised of the work she was performing.
The agency states that the EEO Specialist subsequently contacted a staff
assistant with the Office of the Chief Counsel to see if she recalled
restoring annual leave to complainant. The agency maintains that all
of these communications are explicitly permitted under the settlement
agreement since they concerned determining whether the agency had fully
complied with the terms of the agreement.
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 O 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 instant case, it is apparent that the agency could have
initially utilized different measures to ascertain whether it had
complied with the terms of the settlement agreement. The agency could
have contacted complainant or her attorneys or could have accessed her
time and attendance records through the online recordkeeping system.
Although the agency's method of inquiry is certainly subject to criticism,
we find that it was not undertaken in bad faith and did not constitute
a breach of the settlement agreement. The agency sought to determine
whether complainant's leave had been restored. It is evident that
the EEO Specialist undertook her inquiry with the intent of contacting
individuals that could provide relevant information concerning that issue.
The inquiry process began with the contact of one agency employee but
it then spiraled beyond that to include several employees who the EEO
Specialist was led to believe could assist her in determining whether
compliance had occurred. In light of the fact that the disclosures of the
terms of the settlement agreement resulted from an effort to determine
compliance and that there is no indication that the disclosures were
made in bad faith, we find that the agency did not breach the settlement
agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 (S0408)
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 (Z1008)
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
April 9, 2009
__________________
Date
2
0120070249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120070249