0120131343
06-20-2013
Alina Korsunska, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Alina Korsunska,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120131343
Agency No. HS-CIS-01541-2011
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated June 19, 2012, finding that it was in compliance with the terms of a June 9, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On June 9, 2010, Complainant, a former employee with the Agency's U.S. Citizenship and Immigration (USCIS) California Service Center, and the Agency entered into a settlement agreement to resolve a matter that had been pursued in the EEO process.
The June 9, 2010 settlement agreement provided, in pertinent part, that:
1.b. Upon request, the Agency will provide a neutral reference to potential employers, as long as they contact [the designated Supervisory Management and Program Analyst (SMPA)], or her replacement, at [the designated telephone number]. [SMPA] will give potential employers the Complainant's position title, GS grade at the time she resigned, her salary at the time she resigned, her dates of employment, and that her last performance rating was Fully Successful. Then Agency cannot guarantee what any other agency employee may say if potential employers contact them.1
On August 21, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination in reprisal for prior EEO activity when:
she discovered an email on July 8, 2011, which had originally been received on May 27, 2011 that notified her that she was not selected for a position to which she applied at Social Security Administration (SSA) which led her to believe that USCIS California Service Center breached a settlement agreement that she entered into with the Agency on June 9, 2010, specifying how references into her previous employment would be delivered to potential employers.
On December 2, 2011, the Agency issued a final decision dismissing the August 21, 2011 formal complaint for failure to state a claim. Specifically, the Agency characterized Complainant's claim as an allegation that the Agency acted in reprisal against her by failing to provide her with an appropriate reference led to her non-selection for a position with SSA.
On appeal, the Commission found that the Agency should have processed Complainant's August 21, 2011 formal complaint as a breach claim instead of dismissing it on the procedural grounds cited above. The Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Korsunska v. Department of Homeland Security, EEOC Appeal No. 0120121106 (May 1, 2012), request for reconsideration, EEOC Request No. 0520120466 (November 16, 2012). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
On June 19, 2012, the Agency issued the instant final decision. Therein, the Agency determined that Complainant untimely raised her breach allegation in which Complainant received SSA notification of her non-selection on May 27, 2011. Specifically, the Agency found that Complainant did not notify the Agency EEO office of the alleged breach until July 8, 2011, which the Agency determined was beyond the 30-day limitation period for filing a timely breach claim.
Further, the Agency determined that Complainant did not provide any evidence supporting her allegation that the Agency breached the subject agreement. Specifically, the Agency noted that Complainant did not provide any evidence showing that SSA contacted SMPA for a neutral reference; that SMPA provided a non-neutral reference to SSA or any other agency to which she applied; or that she was in any way aggrieved as a result of the SSA non-selection, particularly that SSA informed her that the Agency decided not to fill vacancies. Moreover, the Agency stated that in her affidavit, SMPA declared she fully complied with the terms of the agreement.
ANALYSIS AND FINDINGS
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 agree with the Agency's determination that Complainant untimely raised her breach claim. The agreement specifically contained language requiring breach claims to be raised with the Agency's EEO office within 30 days of the alleged breach. A complainant is at all times responsible for proceeding with her claims whether or not she has a representative. See 29 C.F.R. � 1614.605(e). The record supports a finding that Complainant determined that the Agency breached the subject agreement by July 8, 2011, but that she did not raise a breach claim until August 21, 2011. On appeal, Complainant has not offered any justification for extending the 30-day time limitation.
Accordingly, the Agency's decision is AFFIRMED.2
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), at 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 (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
June 20, 2013
__________________
Date
1 The settlement agreement also provides for the Agency to assure that Complainant's electronic official personnel file reflects she resigned for personal reasons for employment with the USCIS effective October 15, 2009, and provide Complainant with a Performance Work Plan with an overall rating of Fully Successful. These provisions are not at issue in the instant case.
2 Because we find that Complainant untimely raised her breach claim, we find it unnecessary to address whether the Agency breached provision 1.b. of the settlement agreement.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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