01A51371
08-23-2006
Brian E. Cummins, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Brian E. Cummins,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A51371
Agency No. 5-03-5009
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 12, 2004, finding that it was
in compliance with the terms of the September 30, 2003 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:
The parties agree that they shall keep the terms and facts of this
Resolution Agreement confidential, in accordance with 5 U.S.C. 571 et
seq., except as otherwise required by law, and shall neither disclose
nor discuss its contents with any third party, except those persons
necessary to carry out the terms or resolve disputes over compliance
of this Resolution Agreement.
By letter to the agency dated September 22, 2004, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency violated the confidentiality clause of
the agreement. He noted in his claim of breach that he was not selected
for promotion on ZDV bid # AMN-AT-04-ZDV-72580. He had discussions with
members of the selection committee. He indicated that they voiced
displeasure asserting that he had a problem with females based on his EEO
activity. He believed that the two members of the selection committee, a
Personnel Specialist and an Operations Manager, should not have been privy
to his EEO complaints nor the settlement agreement at issue.
In its November 12, 2004 FAD, the agency concluded that the agency did not
breach the settlement agreement. The agency asserted that his settlement
agreement was not the reason that the selection committee did not chose
him. Further, the agency indicated that their investigation into his claim
did not show any evidence that the settlement agreement was a topic of
discussion for the selection committee. Therefore, the agency concluded
that the confidentiality clause of the settlement agreement was not
breached.
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).
The Commission finds the record insufficient in this matter for a
determination as to whether the agency breached the settlement agreement.
Accordingly, the Commission will set aside the agency's final decision and
will direct the agency to conduct a supplemental investigation pursuant to
the Commission's authority under 29 C.F.R. � 1614.504(c). Although
complainant has the burden of showing the agency was not in compliance with
the settlement agreement,[1] we find the agency has not met its burden of
providing sufficient evidence in support of the FAD. Henry v. United States
Postal Service, EEOC Request No. 05940897 (May 10, 1995), citing Gens v.
Department of Defense, Defense Logistics Agency, EEOC Request No. 05910837
(January 31, 1992). In the instant case, the Area Director wrote a
memorandum regarding his review of the circumstances surrounding
complainant's claim of breach. However, the record is devoid of any
evidence supporting his conclusions, such as affidavits from the agency
officials complainant alleges were aware of his EEO activity and the
settlement agreement. Accordingly, we conclude that the record is
insufficient for the Commission to issue a determination as to whether the
agency breached the settlement agreement.
CONCLUSION
Accordingly, the Commission hereby VACATES the FAD and REMANDS this matter
for further processing consistent with this decision and applicable
regulations. The agency shall comply with the Commission's ORDER set forth
below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which shall
include the following actions:
1. The agency shall obtain statements under oath or affirmation
from the members of the selection committee in connection with
the alleged violation of the confidentiality clause of the
settlement agreement.
2. The agency shall provide appellant with a true copy of the
attestations referenced in item (1) of this ORDER and provide
him with the opportunity to submit a responsive affidavit or
other relevant evidence.
3. Thereafter, the agency shall issue a new final decision, with
appeal rights to the Commission, indicating whether the agency
was in compliance with the settlement agreement, and shall
provide true copies of any and all evidence the agency has
relied upon to support its determination, if the agency
determines it complied with the settlement agreement. If the
agency finds it was not in compliance with the settlement
agreement, it shall give complainant the option of reinstating
his underlying EEO complaint or allowing the agency to take
appropriate steps to come into compliance with the terms of the
settlement agreement.
4. The supplemental investigation and issuance of the final
decision, including evidence of compliance with settlement
agreement, must be completed within forty-five (45) calendar
days of the date the Commission's decision becomes final. A copy
of the final decision must be submitted to the Compliance
Officer, as referenced below.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2006
__________________
Date
-----------------------
[1] . See Moore v. Department of the Navy, EEOC Request No. 05930694 (April
7, 1994).