0120083766
02-12-2009
Chelson R. McCathen, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Chelson R. McCathen,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120083766
Agency No. 06-04-069
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated August 4, 2008, finding that it was in
compliance with the terms of the November 24, 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.
Soon prior to the settlement agreement, the agency proposed to terminate
complainant for misconduct. The November 24, 2006 settlement agreement
provided, in pertinent part, that:
(1) The agency agrees not to pursue any disciplinary or adverse action
against Mr. McCathen for any misconduct occurring prior to this agreement.
The agency will remove all materials relating to Mr. Mr. McCathen's
alleged misconduct from his working file. No record of this agreement
or his alleged misconduct will be placed in Mr. McCathen's Official
Personnel File (OPF). The agency will maintain a copy of this settlement
agreement.1
(2) The agency agrees to refer employment inquiries concerning
Mr. McCathen to the Atlanta Regional Personnel Office in which only
neutral and creditable information (i.e., dates, position, salary,
past performance ratings of record) will be verified....
By letter to the agency dated June 11, 2008, complainant alleged
that the agency breached the settlement agreement, and requested
that it specifically implement its terms and reinstate his complaint.
Complainant contended that since approximately the beginning of 2007,
he applied for over a hundred federal jobs, and despite five or six
interviews, including one where he received strong indications that he
would be hired, he received no job offers.
Suspicious that there was reference problem, complainant indicated in his
notice of breach that he asked a friend, who owns an events promotion
business, to solicit the agency for a reference. The friend affirmed
that asked for reference from the Associate Regional Commissioner with a
Bureau of Labor and Statistics on February 12, 2008, and was ultimately
referred the same day to an identified human resources specialist.
The friend affirmed that this later individual asked her to e-mail
verification questions to him she wished to be answered. She affirmed
that she did so on February 12, 2008, and e-mailed follow up requests
to the same individual on February 20, 2008, and February 22, 2008,
but received no response. Questions asked included starting and ending
dates of complainant's employment, salary, whether he was identified
as needing improvement during his performance review, how well he got
along with management and co-workers, how he handled stress, his biggest
accomplishment, and why complainant departed. The friend affirmed that on
June 12, 2008, she sent an e-mail to the same human resources specialist
again asking for a reference, but received no reply. A review of the
e-mail shows that the same or similar questions were asked, and the friend
posed as a prospective employer explaining that another position opened
and complainant was an ideal candidate. Complainant added in his notice
of breach that he recently hired a professional reference check company
to check his reference, and an agency identified individual would not
give any information without a signed release. Complainant asked the
agency check its records to ensure that settlement agreement term 1
above was implemented.
In its August 4, 2008 FAD, the agency found that complainant untimely
filed his notice of breach, and that there was no breach. It found
that while the friend asked for a reference in February 2008 and got no
response, complainant did not file his notice of breach until June 11,
2008, beyond the 30 day time limit. It found that the agency did not
breach the settlement agreement by not responding to the reference
request by the friend. It reasoned that the settlement agreement
limited the reference information that could be given out, and the
friend solicited much more information than could be released under
the settlement agreement. The FAD also found that requiring a release
from the reference check company was not prohibited by the settlement
agreement. The FAD advised that in the future, employment verification
checks should be made to an identified individual, and that a release
will be required.
On appeal, complainant argues that he timely filed his notice of
breach since a new breach occurs with every failure to respond to
a reference request. He reiterates claims in his notice of breach.
He elaborates that requiring a release is unwieldy and cumbersome, and
will discourage prospective employers. Complainant provides documentation
by the reference check company. The company gave the agency a release
signed by complainant requesting dates of employment, descriptions of
the jobs performed, salary rates, and asked the agency, in "its sole
discretion and judgment," to disclose, among other things, evaluations.
The reference check company indicated that after submitting the release,
an identified individual with the Regional Personnel Office in Atlanta
responded with information verifying complainant's job title, dates of
employment, and salary, and upon being called and asked why complainant
left, responded for personal reasons and was eligible for rehire.
The reference check company advised complainant that being eligible
for rehire usually means an employee left on good terms, and that only
neutral basic employment information was provided. The reference check
company started the process on May 15, 2008, and notified complainant of
the results on May 20, 2008. Complainant argues that all his performance
ratings were average or above average, which is creditable information,
and that not releasing information about them violated the settlement
agreement. Complainant argues that the FAD designating the identified
individual to handle reference checks violates the settlement agreement.
He speculates that the agency has not complied with settlement term 1,
above.
In opposition to the appeal, the agency reiterates the findings in its
FAD. Citing Commission precedent, the agency also argues that since the
people who contacted the agency asking for references on complainant's
behalf were not prospective employers, complainant has not shown the
settlement agreement was breached.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, he shall notify the EEO Director in writing of
the alleged noncompliance within 30 days of when the complainant knew
or should have known of the alleged noncompliance. This time limit is
subject to equitable tolling. 29 C.F.R. � 1614.604(c). The settlement
agreement did not notify complainant of the time limit or who to contact,
and there is no information to impute such knowledge to complainant
in the record. Moreover, we find that complainant did not have a
reasonable suspicion of breach until May 20, 2008, after at least two
unrelated attempts to get a full reference allegedly failed.
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).
Complainant has not shown a breach regarding the reference check company.
Nothing in the settlement prohibits the agency from asking for a release.
Asking for a release is not surprising since very personal information,
such as salary information, was asked in the reference check. Moreover,
complainant has not shown that the reference check company specifically
asked for his creditable information of past performance ratings. Rather,
the release stated the agency in its sole discretion and judgment could
disclose evaluations, and there is no indication that company's follow
up call asked for performance ratings.
The agency's failure to respond to the friend's reference inquiries is
troublesome. It does not appear the request was referred to the Atlanta
Regional Personnel Office, as agreed. Nevertheless, we decline to find
breach. As argued by the agency, the reference request was not made
by a prospective employer, and hence complainant has not shown breach.
Cheh v. Nuclear Regulatory Commission, EEOC Appeal No. 01A20220 (May 15,
2003), request for reconsideration denied, EEOC Request No. 05A30823
(June 26, 2003); Ferreira v. Department of Agriculture, EEOC Appeal
No. 01972054 (March 5, 1998), request for reconsideration denied, EEOC
Request No. 05980564 (August 5, 1999). While complainant showed one human
resources specialist failed to respond to reference checks, he has not
shown this was not exceptional. We note that the agency appropriately
responded to the reference check by the reference check company.
We disagree with the agency's contention that because the settlement
agreement was designed to limit reference information given out, it is not
a breach to provide no information. The settlement agreement provides
that the Atlanta Regional Personnel Office, in response to reference
checks, will provide verification of neutral and creditable information
(i.e., dates, position, salary, past performance ratings of record).
Providing such information, after a release is given to do so, is
critical to complainant being hired by a prospective employer seeking
such verification. Moreover, just because a prospective employer asks
for more information than allowed in the settlement agreement, this
is not an excuse not to answer questions permitted by the settlement
agreement. We also disagree with complainant's argument that the
FAD breached the settlement agreement by instructing him that in the
future, reference checks should be directed to an identified individual.
This is a practical way to ensure and track future compliance with the
settlement agreement. We note that when the reference check company
contacted this individual, it was referred to the Regional Personnel
Office in Atlanta and given appropriate information.
Finally, complainant has not shown a breach of term 1, above. While he
speculates that there is a breach, he does not contend that he, or
someone on his behalf, reviewed the subject files and found improper
information therein.
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
February 12, 2009
__________________
Date
1 Complainant agreed to resign effective November 24, 2006. He also
agreed to withdraw all litigation against the agency, including EEO
matters.
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0120083766
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083766