0120131438
06-28-2013
Barton Wade, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Barton Wade,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120131438
Agency No. HS-TSA-23077-2012
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated January 30, 2013, finding that it was in compliance with the terms of an October 25, 2012 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 October 25, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
1. The Agency agrees to covert [Complainant] from part-time to fill-time employment within 30 (thirty) days of [Complainant's] completion of the required conversion paperwork.
2. [Complainant] agrees to complete the required conversion paperwork within 30 (thirty) days.
By letter to the Agency dated November 30, 2012, Complainant alleged breach. Specifically, Complainant alleged that the Agency failed to covert him from part-time to full-time employment within thirty (30) days of his completion of the required conversion paperwork.
In its January 30, 2013 final decision, the Agency found no breach. The Agency noted that on December 4, 2012, Complainant completed the conversion form. The Agency further found that its 30-day timeframe to convert Complainant's did not begin until Complainant submitted the requisite paperwork on December 4, 2013; therefore, the 30-day expiration date was January 3, 2012. The Agency found that a Human Resources Specialist stated that Complainant's conversion was approved. The Agency noted that a review of Complainant's Standard Form 52 "Request for Personnel Action" (SF-52) reflects that he was converted from a part-time to full-time schedule effective December 30, 2012.
Furthermore, the Agency determined that Complainant's November 30, 2012 claim was premature because it was submitted prior to his submission of the conversion paperwork on December 4, 2012.
The instant appeal followed.
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).
The Agency complied with the terms of the settlement agreement. Provision 1 of the agreement provides for an affirmative Agency obligation to convert Complainant from part-time to full-time employment within 30 days of Complainant's completion of the required conversion paperwork. We further note that provision 2 merely states that Complainant would complete the required conversion paperwork within 30 days following the signing of the agreement. The record contains a copy of the Acting Director's memorandum dated December 18, 2012. Therein, the Acting Director stated that Complainant "submitted the required conversion document on December 4, 2012. Accordingly, TSA is in compliance with the Agreement if the conversion occurs prior to January 4, 2013. Because of the Complainant's delay in submitting the required document, the breach allegation is premature. On December 18, 2012, the TSA's Office of Human Capital initiated the action to process the conversion document."
Complainant alleged that the Agency was supposed to contact him and have him come in to fill out the conversion paperwork. However, provision 2 does not specify that Complainant was supposed to wait for the Agency to contact him in order to complete the paperwork. As a result of Complainant's delay in submitting the paperwork, the Agency did not convert him within 30 days following the signing of the agreement. However, we have held that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Lazarte v. Department of Interior, EEOC Appeal No. 01954274 (April 25, 1996). Therefore, Complainant does not dispute that the Agency converted him within 30 days of the submission of his completed paperwork.
The Agency's finding of no breach of the October 25, 2012 settlement agreement is AFFIRMED.
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 28, 2013
__________________
Date
2
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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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