0120064803_-_0120070335
04-10-2008
_________________, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
_________________,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal Nos. 0120064803 & 0120070335
Agency No. HS 05-TSA-001753
Component No. TSA-05-0180
DECISION
After the agency failed to respond to complainant's July 8, 2006
breach allegations, complainant filed a timely appeal (EEOC Appeal
No. 0120064803) to the Commission on August 17, 2006, alleging that the
agency breached a February 28, 2006 settlement agreement. Subsequently,
the agency issued a final decision on September 25, 2006 finding that it
was not in breach of the agreement. When complainant mailed a copy of
the final decision to the Commission, we inadvertently docketed a second
appeal, EEOC Appeal No. 0120070335. As both appeals concern the same
breach allegations, they are hereby consolidated for our review. 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:
A5. Complainant understands that pursuant to TSA laws, regulations,
and expressed policies, and procedures, it will be necessary for his
continued employment reinstatement, that such re-training, described
above, including successful completion of the screener return-to-duty
training program, an annual recertification, a background security check,
and medical examination, are the normal policy for all such occupants
of his position who return to duty from a leave without pay status,
and that it will remain in effect.
B1. Agency will rescind the termination action against Complainant
dated November 1, 2004.
B2. Agency will remove from the Complainant's OPF (Official Personnel
File) and from all local files, all references to the separation action,
and any references to the underlying incident(s) that led to it.
B3. Agency will retain documents related to Complainant's termination
and other disciplines only in the Office of Chief Counsel's litigation
file and will use said documents only in connection with matters relating
to this Settlement Agreement and Release.
B4. Agency will issue an SF-50 (Notification of Personnel Action)
for leave without pay for the period of separation from November 1, 2004
until Complainant's reinstatement as a Supervisory Transportation Security
Officer (STSO) at Alpena County Regional Airport (APN) in Michigan. Upon
reinstatement, Complainant's Service Computation Date shall be April 14,
2002.
B5. Complainant shall not receive compensatory damages or back-pay.
B6. Agency shall reinstate the Complainant in the position of
Supervisory Transportation Security Officer, (STSO), at an annual salary
of $40,926, plus locality pay in effect for the Alpena, Michigan area
equal to $5,124 per annum, for a total annual salary of $46,050.
B7. Upon reinstatement to a STSO, Complainant will have to serve
a basic trial period in accordance with TSA's Management Directive
No. 1100.31.1.8. The Agency will not reimburse Complainant's retirement
account from November 1, 2004 until the date of his reinstatement pursuant
to this Agreement. Therefore, the period of separation from November
1, 2004 until Complainant's reinstatement is not counted as creditable
service for retirement unless Complainant chooses to make the applicable
retirement contributions to cover the period of separation.
B9. Agency shall provide Complainant with all training that is
reasonable and necessary for the adequate performance of his duties as
a Supervisory Transportation.
By letter to the agency dated July 8, 2006, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that the agency failed to provide him with proof that
his termination was rescinded; failed to remove all references to the
termination and the underlying incidents that led to his termination from
agency files; failed to issue complainant an SF-50 form for leave without
pay for the period from the November 1, 2004 date of his termination until
the date of his reinstatement as a Supervisory Transportation Officer
(STSO); and the agency failed to reinstate complainant to the position
of STSO, with an annual salary of $46,050.00.
In an appeal brief, complainant further alleges that documents referencing
his termination remained in his personnel file and agency files in
Traverse City, Michigan. Complainant further alleges that the SF-50
he received states that he was on leave without pay from November 1,
2004 until July 23, 2006. Complainant contends that the leave without
pay date should be corrected to reflect an end date before March 15,
2006, the date the agency did a background check of complainant's credit
history.1 Complainant further alleged that the agency threatened to
terminate him because it determined that complainant failed to disclose
pertinent medical information regarding his qualifications for the STSO
position before entering into the settlement agreement.
In subsequent statements, complainant contends that the agency breached
the agreement by waiting until July 23, 2006 to reinstate him.
Complainant further maintains that the agency placed him into the
position in November 2006 and provided him with training. Additionally,
complainant contends that the agency remains in breach of the agreement
because it referenced his prior arrest on an SF-50 form.
On appeal, the agency maintains that it has complied with the terms
of the settlement agreement by cancelling complainant's termination;
placing complainant in leave without pay status for the period of
complainant's separation until complainant's reinstatement; returning
complainant to duty; and, removing references to complainant's removal
from his personnel files. The agency further maintains that it delayed
reinstating complainant because it discovered that complainant failed
to disclose during settlement negotiations the fact that Comprehensive
Health Services (CHS)2 had determined that complainant was medically
disqualified from the screener position. The agency maintains that
complainant also failed to disclose CHS' assessment when he certified
that he met the requirements for the supervisory screener or STSO position
on February 21, 2006. The agency contends that after it discovered that
complainant's self-certification was inaccurate, it provided complainant
with the opportunity to establish that he was medically qualified to
be reinstated to the screener position and eventually reinstated him
to the position effective July 23, 2006. The agency maintains that
"Complainant's allegations that the Agency unduly delayed its compliance
with the Settlement Agreement are disingenuous because he was the source
of the delay."
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, the agency agreed, in pertinent part, to rescind
complainant's November 2004 termination; remove matters related to
complainant's termination from local files and complainant's personnel
files; issue an SF-50 form for leave without pay for the period of
separation until complainant's reinstatement as an STSO; reinstate
complainant as an STSO with an annual total salary of $46,050.00; and,
provide complainant with all training that is reasonable and necessary
for the adequate performance of complainant's work duties in the STSO
position.
The record contains an SF-50 form dated July 20, 2006 reflecting that
complainant's November 1, 2004 termination was rescinded. The record
also contains an email dated August 10, 2006 from a Human Resources
Specialist in which the Specialist states that "all items mentioned in
the settlement agreement" have been removed from complainant's personnel
folders. Furthermore, the record contains a copy of an SF-50 dated
July 20, 2006, reflecting that complainant was placed in leave without
pay status from the November 1, 2004 date of his termination until his
effective reinstatement as an STSO on July 23, 2006. Additionally, the
record contains a copy of an SF-50 approved on August 16, 2006, reflecting
that complainant was reinstated to an STSO position effective July 23,
2006 with an annual total salary of $46,050.00. Further, complainant
acknowledges on appeal that he ultimately received the promised training
after he was placed in the STSO position.
Nevertheless, both parties acknowledge that complainant's reinstatement
was delayed because they became embroiled in a debate over whether
complainant withheld information indicating that he was medically
ineligible for the STSO position before entering into the settlement
agreement. Complainant maintains that the delay in reinstating him is
inexcusable because "whether or not I disclosed the fact that I failed
a medical exam for a screener position in October of 2005 is completely
irrelevant to being found medically qualified [for the position] in
February of 2006."
We note that the record contains a copy of a January 18, 2006
correspondence in which complainant informed a CHS official that he
had been medically disqualified for a screener position in October 2005
because he had undergone three surgeries for an abdominal hernia. Yet,
in a document signed February 21, 2006, complainant certified that he did
not have any medical condition that would disqualify him from taking the
screener position. We find that the agency's delay in reinstating and
training complainant was reasonable in this case, given the evidence that
complainant withheld information pertinent to the terms of the agreement.
Moreover, we note that the terms of the agreement do not specify when
complainant must be reinstated to the STSO position.3 Consequently,
we find that the agency substantially complied with the terms of the
agreement when it rescinded complainant's November 2004 termination;
reinstated complainant effective July 23, 2006; issued complainant
an SF-50 that reflected that he was in leave without pay status from
the period of his termination until his reinstatement; and, provided
complainant with training for the STSO position.
Finally, complainant contends that the agency breached the agreement
by retaining an SF-50 in his personnel file that states that he was
suspended on August 2, 2004 for "arrest on outstanding felony warrant" in
his personnel file. Provision B2 of the settlement agreement states that
the agency will remove "any references to the underlying incidents" that
led to complainant's termination. The record reveals that complainant's
November 1, 2004 termination was based on his failure to report to
the agency his May 11, 2004 arrest on an outstanding felony warrant.
The agency contends that retaining this SF-50 in complainant's personnel
file does not breach the agreement because the suspension was based on
complainant's arrest on a warrant, whereas his termination was partly
based upon complainant's failure to disclose his arrest on the warrant.
Upon review, we determine that the language of provision B2 precludes the
agency from making any reference to anything related to complainant's May
11, 2004 arrest because the arrest was an underlying event that led to
complainant's termination. Therefore, we find that the agency breached
provision B2 of the settlement agreement. To remedy a finding of breach,
the Commission may order reinstatement of the underlying complaint,
or enforcement of the agreement's terms. See 29 C.F.R. 1614.504(c).
In this matter, we determine that specific enforcement of the terms of
the agreement is the appropriate remedy.
Accordingly, the Commission hereby REMANDS this matter to the agency
to take remedial actions in accordance with this decision and the ORDER
below.
ORDER
To the extent that the agency has not already done so, the agency is
ordered to immediately remove all references to complainant's May 11,
2004 arrest from complainant's personnel file and all local files.
The agency is further directed to submit a report of compliance, as
provided in the "Implementation of the Commission's Decision. The report
shall include all supporting documentation verifying that the corrective
action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (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 (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:
______________________________ __April
10, 2008_________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant argues that because the terms of the settlement agreement
state that a background check will be done "after reinstatement,"
the effective date of complainant's reinstatement cannot be after the
background check is performed.
2 Comprehensive Health Services is a contractor responsible for medical
evaluations.
3 We note that complainant argues that Provision A5 of the agreement
requires the agency to reinstate him before determining his qualifications
for the STSO. We find complainant's argument unpersuasive.
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0120064803
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064803 & 0120070335
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0120064803 & 0120070335