0120113946
12-13-2012
Arthur J. Washington, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Arthur J. Washington,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113946
Agency No. ARPOLK07MAY01943
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's Directorate of Emergency Services facility in Fort Polk, Louisiana.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 19, 2008, Complainant and the Agency entered into a settlement agreement to resolve the matter. Pursuant to the settlement agreement the Agency agreed, in pertinent part:
3e To remove the suspension letters dated 14 Sept 2007 and 4 Jan 2008 and the related SF-50 dated 5 Jan 2008 from [Complainant's] official personnel file after three years from the date this agreement is signed by all parties.
By letter to the Agency dated July 12, 2011, 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 remove the suspension letters along with the related SF-50 from his personnel folder. The record indicates that Complainant initially advised the Agency of its breach of provision 3e of the settlement agreement when he received the Agency's Advance Notice - Proposal Termination dated June 24, 2011, which referenced the suspension letters in question. According to the Agency, once it received notification from Complainant that the proposed termination letter referenced the suspension, Complainant's supervisor immediately "began working to ensure that the Agency was in compliance with" the March 19, 2008 settlement agreement. The Agency indicates that on June 24, 2011, hard copies of the suspension letters and the SF-50's were removed from Complainant's official personnel file. On July 11, 2011, the Agency recalled its initial Advance Notice - Proposed Termination referencing the suspension and issued an Amended Notice. Subsequently, Complainant provided the Agency with a written allegation of breach of the settlement agreement dated July 12, 2011. The Agency further indicates in its final decision that on July 15, 2011, all record of the suspension was removed from the Agency's automated database in accordance with the March 19, 2008 settlement agreement.
In its final decision, the Agency concluded that it had complied with the settlement agreement with the parties. In reaching this conclusion, the Agency reasoned that the act of removing the suspension letters on June 24, 2011 and July 15, 2011, demonstrated the Agency's compliance with provision 3e of the settlement agreement. The Agency further determined that Complainant failed to demonstrate a breach of the March 19, 2008 agreement between the parties.
This appeal followed.
ANALYSIS
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, Complainant argues that the Agency breached the agreement when it failed to remove the suspension letters and SF-50s within three years of March 2008. EEOC Regulation 29 C.F.R. � 1614.504(b) provides that after notification by a complainant of alleged noncompliance with a settlement agreement, the agency should resolve the matter and respond to the complainant. The Commission has interpreted this provision as allowing the agency the opportunity to cure any breach that may have occurred. See Covington v. USPS, EEOC Appeal NO. 01913211 (September 30, 1991). Here, the Agency argues that any breach of the agreement was cured by the Agency's removal of the suspension letters on June 24, 2011 and July 15, 2011. However, here, Complainant is alleging further that he has suffered harm from the presence of the suspension letters in his personnel folder. Specifically, Complainant alleges that the Agency relied on the suspension letters in its decision to issue Complainant a proposal to terminate him. The record indicates that in the Agency's initial Advance Notice - Proposal Termination, dated June 24, 2011, the Agency stated that it considered Complainant's past disciplinary record including "a seven day suspension in January 2008," in proposing to terminate Complainant from his position with the Agency. In that regard, Complainant alleges that the Agency's breach caused him to suffer harm with respect to the terms and conditions of his employment with the Agency. Moreover, Complainant argues the record reveals that although the Agency recalled the June 24, 2011 notice of Proposed Termination, the Amended Notice of Proposed termination, dated July 11, 2011, indicates that the Agency has taken into account that "the record documents a pattern of similar misconduct issues." Upon review, we find that the Agency has breached provision 3e of the March 19, 2008 settlement agreement between the parties.
CONCLUSION
Accordingly, the agency's decision finding that it did not breach provision 3e of the settlement agreement is REVERSED and we REMAND the matter for further processing in accordance with the Order below.
ORDER
To the extent it has not already done so, the Agency shall within thirty (30) calendar days of the date this decision becomes final, remove and expunge the suspension letters dated September 14, 2007 and January 4, 2008, as well as the related SF-50 dated January 5, 2008, from Complainant's official personnel folder. Within thirty (30) days of the date this decision becomes final, the Agency shall cancel the Amended Notice of Proposed Termination dated July 11, 2011 which we find improperly relied on matters of past discipline which remained in Complainant's official personnel folder in violation of the settlement agreement. Within thirty (30) days of the date this decision becomes final, the Agency shall send Complainant a letter stating that the relevant suspension letters and form SF 50 have been removed from Complainant's official personnel folder. A copy of the letter to Complainant must be sent to the Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
December 13, 2012
__________________
Date
2
0120113946
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113946