0120093294
01-15-2010
_________________, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
_________________,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120093294
Agency No. OST05001
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 1, 2009, finding that it was in
compliance with the terms of the September 13, 2006 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 [identified
by name, the Director of Departmental Office of Civil Rights (DOCR)]
will be the supervisory contact for potential employers of Ms. Pacheco.
If [identified by name, the Deputy Director of DOCR, complainant's
supervisor] is contacted by potential employers directly, she will
diplomatically redirect calls to [the Director].
In December 2008, complainant applied for a job with the Bureau of
Reclamation, listing the supervisor's name, and quite possibly, she
concedes, the supervisor's direct line telephone on the application.
The Director left government service on January 20, 2009. Upon his
departure the supervisor became the acting Director.1 Around February or
March 2009, the Bureau called the supervisor as a reference. Believing
complainant gave her name as the person to contact since she got no calls
before the Director left and outsiders generally do not have her direct
line, the supervisor discussed complainant's performance, interests, and
achievements. On May 5, 2009, complainant learned from the supervisor
about the reference call. Accordingly to the supervisor, she gave a
positive reference. Complainant writes she did not get the job.
By letter to the agency dated May 28, 2009, complainant alleged that the
agency was in breach of the settlement agreement, and requested that it
to specifically implement its terms, or if it would not do so, reinstate
her complaint. Specifically, complainant wrote that the supervisor
acting as a reference breached the settlement agreement. She wrote
that the above term of the settlement agreement bars the supervisor
from ever responding to potential employers. Complainant wrote that
implementing the settlement agreement would require the supervisor to
redirect calls to the former Director. She suggested that the former
Director was willing to continue serving as a reference.
In its July 1, 2009 FAD, the agency concluded that it did not breach the
settlement agreement. It found that the above term of the settlement
agreement is no longer in force or enforceable. Pointing to language in
the term at issue, the agency reasoned that the former Director could no
longer serve as complainant's supervisory contact for potential employers
once the supervisory relationship terminated. It also reasoned that while
the agency and certain employees are bound by the settlement agreement,
the Director as a former employee was no longer bound, and the agency
cannot require him to serve as a reference.
On appeal, complainant reiterates the arguments she made in her notice
of breach. She argues that the supervisor could also advise a caller
from a potential employer that that it is her policy not to respond to
reference checks and direct the caller to Human Resources. In opposition
to the appeal, the agency argues that the FAD should be affirmed.
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).
We agree with the agency's finding that the above term of the settlement
agreement is no longer in force, for the reasons found by the agency.
If complainant wishes to use the former Director as a reference, this
is now a private matter between complainant and the former Director.
The FAD is affirmed.
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
January 15, 2010
__________________
Date
1 Complainant departed from the agency in September 2009.
??
??
??
??
2
0120093294
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093294