0120092211
02-04-2011
William D. Gerdes, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
William D. Gerdes,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal Nos. 0120080054
0120092211
01201022001
Agency Nos. HS-06-CIS-003702
HS-98-CIS-000204
DECISION
Complainant filed appeals with this Commission from final determinations
by the Agency dated August 30, 2007, finding certain breach of settlement
claims untimely, and September 8, 2009, finding that it was in compliance
with the terms of the settlement agreement dated October 17, 2000. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The Commission accepts the appeals pursuant to 29 C.F.R. � 1614.405(a).
The Commission AFFIRMS the Agency's final determination.
ISSUE PRESENTED
The issue presented herein is whether the Agency breached a specified
provision of a settlement agreement into which it entered with
Complainant.
BACKGROUND
Complainant was employed by the Agency as a Deputy IT Director of
Daily Operations, GS-0301-12, at the time of events giving rise to
these appeals. On October 17, 2000, he and the Agency entered into a
settlement agreement which provided, in pertinent part:
2(c) - In exchange for the promises of Complainant...the Agency
agrees...to consider Complainant in good faith for any position for
which he may apply and for which he may qualify."2
From May 2006 to December 2009, Complainant applied for six Agency
positions. Those vacancies, respectively, are as follows: (1) Assistant
Center Director, Records (Vac. No. CIS-11080-NSC); (2) Assistant Center
Director, Customer Relations (CIS-117897-NBC); (3) Supervisory IT
Specialist (CIS-117760-ISM), (4) IT Specialist (CIS-PJN-191842-ISM);
(5) Supervisory IT Specialist (CIS-211650-ISM); and (6) Supervisory
Management and Program Analyst (CIS-209312-NSC). He was not selected
for any of the positions. Believing each instance constituted a breach
of provision 2(c), Complainant contacted the Agency's EEO Director to
complain. He also complained that the Agency breached this portion of
the agreement when it did not reclassify the position he currently held
to that of Supervisory IT Specialist, GS-2210-13.
On August 30, 2007, the Agency issued a final determination regarding
non-selections one through three, finding those allegations untimely.
Specifically, the Agency found that Complainant was notified of the
non-selections between July 21 and August 16, 2006, but did not contact
the EEO Director until March 21, 2007, which was beyond the 30-day
limitation period imposed by 29 C.F.R. � 1614.504(a). The Agency
disposed of this complaint by dismissing it pursuant to 29 C.F.R. �
1614.107(a).
On September 8, 2009, the Agency issued another final determination in
which it found that Complainant was considered in good faith for vacancies
four through six, which according to the language of the agreement was
all the Agency was required to do. Regarding the reclassification of
Complainant's position, the Agency found that this employment action was
not related to an application for an existing job vacancy and therefore
did not implicate the terms of the agreement.3 The Agency concluded
there was no settlement breach.
Complainant appealed both Agency determinations in two separate filings
with the Commission. Here, the Commission exercises its discretion
to consolidate two or more complaints filed by the same complainant.
See 29 C.F.R. � 1614.606. Both appeals are considered below.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that in settlement breach cases there
is confusion regarding whether a federal employee has 30 or 45 days
to contact the EEO office. He also contends that, with respect to
vacancy six, the Agency failed to consider his application in good
faith because at least two of the three selectees on the selection
panel were biased against him for having filed previous EEO complaints.
Complainant indicated that this particular non-selection was part the
subject of a formal complaint he had filed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Timeliness
The Commission's regulations provide that if a Complainant believes that
the Agency has failed to comply with the terms of a settlement agreement,
the Complainant must notify the EEO Director of the alleged non-compliance
within 30 days of when the Complainant knew or should have known of the
alleged non-compliance. See 29 C.F.R. � 1614.504(a).
Complainant contends on appeal that the Commission's regulations are
unclear as to whether 30 or 45 days is the time limit for alleging
settlement breach allegations, however, as indicated above, our
regulations plainly state the controlling time limit in such cases is
30 days. The record indicates that Complainant was not selected for
vacancies one, two and three, and learned of these non-selections between
July and August 2006. However, he did not contact the EEO Director (or
the EEO office for that matter) to complain that these non-selections
were violative of the October 2000 settlement agreement until March 2007,
which is well beyond 30 days (or 45 days for that matter) from even the
last day of August 2006. We therefore find that the Agency properly
dismissed these breach claims.
Settlement Breach
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 (Dec. 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 (Aug. 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
Sen., EEOC Request No. 05910787 (Dec. 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 comers 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).
The record reflects that Complainant's name was included on the
selection certificate for vacancies four through six, and that he was
duly considered for each vacancy, although nonselected. According to
the plain language of the contractual provision at issue, the Agency was
not obligated to do more than it did; Complainant's lack of success in
securing a position does not compel a finding otherwise.4 Regarding the
issue of reclassifying Complainant's job to a higher-graded position,
nothing in the settlement agreement obligated the Agency to take this
action. We find, as did the Agency, that this particular allegation is
beyond the scope of the agreement.
CONCLUSION
After a thorough review of the record, including Complainant's contentions
on appeal and other evidence not specifically, we find that Complainant
untimely complained of a settlement agreement breach regarding vacancies
one, two, and three, and that the Agency was in compliance with the
terms of the settlement agreement regarding vacancies four, five and six.
We also find that reclassifying Complainant's position is not at issue
where the settlement agreement is concerned. We therefore AFFIRM the
Agency's final determination.
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
February 4, 2011
Date
1 We note that EEOC Appeal No. 0120092211 is a duplicate of the filing
in Appeal No. 0120102200.
2 This is the only portion of the agreement that Complainant has alleged
was breached.
3 The settlement agreement at issue also required the Agency to
retroactively promote Complainant to a GS-12 position as of March
14, 1999. The evidence in the file indicated this action was taken,
and Complainant did not allege the Agency violated this portion of the
agreement.
4 We decline in this decision to address the merits of Complainant's
reprisal allegation concerning vacancy six because it is not dispositive
of the outcome of this appeal. We note that Complainant indicated
that he filed an EEO complaint regarding this matter and, barring any
procedural defects with the complaint, any determination on the merits
will be addressed in the formal complaint process.
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0120102200
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102200