0120103695
02-08-2011
Sandra T. Talley, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.
Sandra T. Talley,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120103695
Agency No. NRC0905
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated August 11, 2010, finding that it was
in compliance with the terms of the May 28, 2009 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.
The settlement agreement provided, in pertinent part, that:
(1) All official agency records of the Performance Improvement
Requirement
Memorandum (PIRM), dated January 7, 2009, and (within grade
increase) WGI Denial dated November 12, 2008, will be removed from
[Complainant's] Official Personnel File (OPF). The PIRM and WGI
denial will not be mentioned to any prospective employers who may
inquire regarding [Complainant's] performance. Consistent with
paragraph (9) of this Agreement, the parties further agree to make
a good faith effort not to discuss the PIRM or WGl denial in any
other context, however, any such discussion does not constitute a
material breach of this Agreement. The parties understand that
the files maintained by the Office of Human Resources and the
Office of the General Counsel are not subject to this provision.
By letter to the Agency dated June 30, 2010, Complainant alleged that the
Agency was in breach of the settlement agreement, and requested that the
Agency specifically implement its terms. In subsequent correspondence,
Complainant specifically alleged that the Agency failed to remove the
November 2008 WGI denial from her personnel file. In its August 11,
2010 FAD, the Agency concluded that is had substantially complied with
the Agreement. The Agency acknowledged that the WGI denial had not
been removed from Complainant's file, as per the Agreement, but that
once the Agency was notified, it promptly complied. The Agency further
determined that no other person had accessed Complainant's personnel
file and so no one had seen the WGI denial in her file. The Agency
concluded that Complainant had not been harmed by the Agency's action
and that the Agency had substantially complied with the Agreement.
On appeal, Complainant asks how the Agency can state that no one had
accessed her personnel files while the WGI denial was still in it.
Complainant further argues that removal of the document does not cure
the breach and that a more appropriate action would be for the Agency
to "insert information in my file to negate any harm or negative impact
that I may have suffered as a result of anyone viewing this information."
Complainant, however, does not specify what type of information inserted
in her file would have such an effect. The Agency has presented no
argument on appeal.
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).
In the instant case, we find that the Agency breached the Agreement by
failing to remove the WGI denial from Complainant's personnel file upon
execution of the Agreement. We note, however, that in addition to the
removal of the WGI denial and the PIRM from Complainant's personnel file,
the Agreement included additional terms, including an award of $2,500.00
in attorney's fees and $3,000.00 in compensatory damages to Complainant.
Should Complainant's complaint be reinstated for further processing,
then Complainant and the Agency would be returned to the status quo at
the time that the parties entered into the settlement agreement, which
would require that Complainant return any benefits received pursuant to
the settlement agreement, such as the payments referenced above. See,
e.g., Armour v. Dep't of Def., EEOC Appeal No. 01965593 (June 24, 1997);
Komiskey v. Dep't of the Army, EEOC Appeal No. 01955696 (Sept. 5, 1996).
Accordingly, we remand Complainant's claims for further processing.
However, we 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 abiding by the terms of the
amended agreement.
ORDER
The Agency is ordered to notify Complainant of her option to return
to the status quo prior to the signing of the settlement agreement.
The Agency shall so notify Complainant within thirty (30) calendar days
of the date this decision becomes final. The Agency shall also notify
Complainant that she has fifteen (15) calendar days from the date of
her receipt of the Agency's notice within which to notify the Agency
either that she wishes to return to the status quo prior to the signing
of the agreement or that she wishes to allow the terms of the agreement
to stand. Complainant shall be notified that in order to return to the
status quo ante, she must return any benefits received pursuant to the
agreement. The Agency shall determine any payment due Complainant, or
return of consideration or benefits due from Complainant, within thirty
(30) calendar days of the date this decision becomes final, and shall
include such information in the notice to Complainant.
If Complainant elects to return to the status quo ante and she returns
any monies or benefits owing to the Agency, as specified above, the Agency
shall resume processing Complainant's complaint from the point 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 settlement agreement shall stand.
A copy of the Agency's notice to Complainant regarding her options,
including the determination of consideration due or owing, 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 stand, must be sent to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (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 (R0610)
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 (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
February 8, 2011
__________________
Date
2
0120103695
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103695