Salvador Sanchez, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJan 19, 2001
01A03581 (E.E.O.C. Jan. 19, 2001)

01A03581

01-19-2001

Salvador Sanchez, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Salvador Sanchez v. SSA

01A03581

January 19, 2001

Salvador Sanchez,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A03581

Agency No. SSA-427-88

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated March 13, 2000, finding that it was in

compliance with the terms of the June 13, 1991 settlement agreement into

which the parties entered.<1> See EEOC Regulations 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1) [The agency will] change complainant's removal action to a voluntary

resignation for personal reasons.

(2) [The agency will] remove the reprimand, PIP, and all performance

data and related information for the period 10-01-87 to present from the

7B extension file and all other official personnel files. Every effort

will be made to turn over these materials to complainant with 30 days

of his signature to this agreement. No copies of this documentation

will be maintained by the agency or any federal employee.

(3) No negative verbal or written statements will be made by any SSA

management employees to any persons concerning complainant's performance,

work habits, or attendance....

(5) A lump sum payment of $3,000.00 (three thousand dollars) will

be paid to [complainant] as a settlement for withdrawing

the EEO formal complaint and not pursuing arbitration. . . .

By letter to the agency dated October 1, 1999, complainant claimed

that the agency breached the settlement agreement, and requested that

the agency reinstate his complaint. Specifically, complainant claimed

that the agency failed to remove the negative information referenced

in provision 2, and that it breached provision 3, as well as a general

provision not to harass complainant.<2>

In its March 13, 2000 decision, the agency concluded that all

documentation concerning the prior complaint had been destroyed pursuant

to applicable federal government regulations, and that only the settlement

agreement and a copy of the personnel action regarding complainant's

resignation had been maintained by the agency. The agency found that

because neither of these documents violated the settlement agreement,

no breach had occurred as claimed by complainant.

Complainant makes no statement on appeal. In response, the agency avers

that complainant had not worked for the agency since January 1989,

and received workers' compensation payments until April 1998, when

it was discontinued. The agency noted that complainant then sought

reinstatement with the agency, and was told that he would be placed on a

priority list because of his prior employment with the agency. However,

he was then told he would not be placed on the priority list because he

had voluntarily resigned. The agency further indicated that complainant

sought EEO counseling regarding the agency's failure to reinstate him,

but that he did not file a formal complaint on this matter. The agency

again notes that only the settlement agreement and personnel action were

available, and that neither violated the settlement agreement.

In the instant case, review of the record reflects that a personnel

management official stated that complainant was not eligible for

reinstatement because he had been terminated for performance problems.

Additionally, the agency's assistant regional counsel advised the

personnel office that the settlement agreement at issue is in an �adverse

action� file the agency maintained on complainant, and that complainant

was further ineligible for priority reinstatement because his termination

was changed to a resignation.

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).

We find that the official's statements, as well as the maintenance

of the settlement agreement in an �adverse action� file violates the

terms of the settlement agreement. Specifically, provision 3 above

reflects that no agency official is to make negative remarks about

complainant's performance. However, the official here determined that

complainant was not eligible for reinstatement because he was terminated

for �performance problems� and communicated this matter to staff, as

well as to the EEO Counselor. Moreover, to maintain the settlement

agreement, which identifies all the negative actions to be removed

from complainant's files, in an �adverse action� file is tantamount to

maintaining these records themselves, and violates the intent to have

all negative references removed from all personnel files.

Accordingly, we find that the agency breached the settlement agreement as

claimed by complainant. Where, as here, a breach is found, the remedial

relief is either the reinstatement of the complaint for further processing

or specific enforcement of the settlement agreement. If the complainant's

complaint is reinstated for further processing, then the parties must

be returned to the status quo at the time that the parties entered into

the settlement agreement, which requires that the complainant return

any benefits received pursuant to the terms of the settlement agreement.

See, e.g. Armour v. Department of Defense, EEOC Appeal No. 01965593 (June

24, 1997); Komiskey v. Department of the Army, EEOC Appeal No. 01955696

(September 5, 1996).

Here, complainant requested that his complaint be reinstated for further

processing. Consequently, on remand, complainant shall be advised

that in order to reinstate the complaint, a condition precedent is

the return of any benefits received through the execution of the other

provisions of the agreement. In view of this requirement, we therefore

give complainant the option, in accordance with the ORDER below, of

either returning the benefits conferred pursuant to the agreement and

reinstating the complaint, or keeping the benefits conferred pursuant

to the agreement and having the agreement specifically enforced.

Based on the foregoing, we REVERSE the agency's final decision, and

REMAND this matter to the agency for further processing in accordance

with the ORDER below.

ORDER

The agency is ORDERED to notify complainant of his option to return to

the status quo prior to the signing of the settlement agreement and

having his complaint reinstated or having the terms of the agreement

specifically enforced. The agency shall so notify complainant within

fifteen (15) calendar days of the date that this decision becomes final.

The agency shall also notify complainant that he has fifteen (15) calendar

days from the date of his receipt of the agency's notice within which

to notify the agency of his choice. Complainant shall be notified that

in order to return to the status quo ante, he must return any benefits

received pursuant to the agreement.

If complainant elects to return to the status quo ante and he returns

any monies owing to the agency, the agency shall resume processing of

complainant's complaint from the point that processing ceased pursuant to

29 C.F.R. � 1614.108 et seq. If complainant elects not to return to the

status quo ante, i.e., not to return any consideration owing the agency,

the agency shall notify complainant that the terms of the agreement will

be specifically enforced.

A copy of the agency's notice to complainant regarding his options, as

well as a copy of either the correspondence reinstating the complaint

for processing or the correspondence notifying complainant that the

terms of the agreement will be specifically enforced, must be sent to

the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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:

January 19, 2001

Date Carlton M. Hadden, 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2We advise complainant that he must contact an EEO counselor and file a

separate complaint if he feels that the agency is engaged in retaliatory

harassment. 29 C.F.R. � 1614.504(c)