0120082596
12-10-2009
Darriel K. Caston, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Darriel K. Caston,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120082596
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final decision (FAD) by the
agency dated April 21, 2008, finding that it was in compliance with
the terms of the December 18, 1997 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:
(A.4) [the agency will] forward all negative materials relating
to the Equal Employment Opportunity Complaints referenced in this
Settlement Agreement to the Mid-Pacific Region's Alternative Dispute
Resolution Office for appropriate records holding in accordance with
Agency regulations. However, any materials submitted to Management by
the Employee's co-workers which relate to the Employee may be retained
by the appropriate Management official(s);
(A.8) [the agency will] issue the necessary documentation in the
Employee's Official Personnel Folder (OPF) to reflect that the suspension
previously effected on 12/12/96 - 2/25/97 and 9/9/96 - 3/24/96, will
refer only to the charge of misuse of a government credit card;
(C.4) Reclamation and the Employee agree that the facts of this
Agreement and all terms contained in it shall be kept confidential.
They agree that these matters may not be disclosed or discussed
with anyone not directly party to this Agreement, except the parties'
representatives and Agency employees needing to know the information as
part of their official duties. However, this confidentiality agreement
shall not prevent reference to the Agreement's terms in litigation; and
(C.6) The parties agree that this Agreement may be used as evidence in
a subsequent proceeding in which either of the parties alleges a breach
of the Agreement.
On June 22, 2004, complainant notified the agency that it breached the
settlement agreement when certain information became available to his
supervisors and was leaked to the union and employees. He also asserted
that documents should have been destroyed. The agency found no breach.
In Caston v. Department of the Interior, EEOC Appeal No. 01A45342 (March
21, 2005), request to reconsider denied, EEOC Request No. 05A50736
(June 1, 2005), the Commission affirmed. It reasoned that complainant
did not present evidence showing that the agency breached the settlement
agreement, and that he stated he recently reviewed his file and found
no negative comments.
By letters dated January 29, 2006, and February 8, 2006, complainant
again notified the agency that it breached the settlement agreement.
The agency replied to complainant that the Commission already found
no breach, and there were no further administrative appeal rights.
Nevertheless, complainant filed an appeal. In Caston v. Department
of the Interior, EEOC Appeal No. 0120062885 (November 13, 2007), the
Commission remanded the breach claim back to the agency for further
processing. The Commission explained that it was unable to ascertain
whether complainant's instant breach claims were part of his prior breach
claims. The Commission directed the agency to contact complainant in
writing and give him an opportunity to clarify his breach claims and
supplement the record with evidence supporting them, and then issue a
final agency decision making a determination on the claims.
On remand, the agency gave complainant two opportunities in writing
to clarify his breach claims. Complainant availed himself of the
opportunities, and provided documentation. The agency then issued a
final decision finding no breach.
Long after his 1997 settlement agreement, complainant was removed
effective October 1, 2003, from his position of electrical engineer.
He filed an appeal with the Merit Systems Protection Board (MSPB or
Board). It was resolved by a settlement agreement that was entered
into the MSPB record for enforcement purposes, dismissing the appeal
in April 2004. The agency agreed, in part, to place complainant on
administrative leave followed by leave without pay until he obtained
other employment or until January 1, 2005, at which time he agreed to
resign for personal reasons. See Caston v. Department of Interior,
108 M.S.P.R. 190 (March 4, 2008).
In an EEOC Appeal No. 0120062885 brief in support of his claim that the
agency breached the 1997 settlement agreement, complainant argued in part
that the agency was in breach because it used documentation to support
his removal that should have been destroyed and remained confidential
under the settlement agreement. He submitted excerpts of depositions of
the officials who proposed and decided to remove him in October 2003.
The depositions were taken by complainant's attorney in December 2003,
for the MSPB removal appeal. The depositions indicate that the proposal
and decision to remove referenced complainant's prior 30 day suspension,
that the suspension was for misuse of a government credit card, that
the proposed removal charged complainant with drawing an unauthorized
amount of cash advances and failure to pay the full account balance on
his government charge card, and the prior 30 day suspension was considered
with respect to rehabilitation potential. In her deposition the official
who proposed complainant's removal stated that she was advised by Employee
and Labor Relations Specialist J.W. that this was not the first offense.
In the instant appeal, complainant refers to a March 17, 2004, MSPB agency
filing on the removal appeal which argued complainant had a prior history
in that by decision letter issued on February 2, 1996, he was suspended
for 30 days under charges of excessive cash withdrawals on his government
credit card, repeated account delinquency, and falsification of travel
voucher information. Complainant contends this shows the agency used
information that was to remain confidential under the 1997 settlement
agreement to remove him in October 2003. Complainant also concedes that
the March 17, 2004, filing was part of his first claim of breach.
On remand, in clarifying his breach claim, complainant conceded "that
it would be counterproductive" to provide any issues or evidence that
was either part of the July 7, 2004 final agency decision originally
finding no breach or known before the Commission issued its decision in
EEOC Appeal No. 0120045342 finding no discrimination. Complainant went
on to submit subsequent documentation.
The additional documentation was in the form of argument, affidavits,
and responses to discovery by the agency and its officials made after the
decision in EEOC Appeal No. 0120045342 (March 21, 2005). It was created
and submitted by the agency in response to the following litigation by
complainant: litigation before the EEOC that, among other things, tried
to raise, without success, the breach of his 1997 settlement agreement
and which speculated that agency employees got information from his old
EEO files and used it to create a hostile environment leading to his
termination in October 2003;1 as best we can determine litigation before
the MSPB that contended the agency breached the 1997 and 2004 settlement
agreements;2 and subsequent litigation before the MSPB again alleging
the agency breached the 2004 settlement agreement and referencing the
agency's alleged breach of the 1997 settlement agreement.3
Much of the documentation submitted by complainant on remand was to
corroborate his claim that the agency improperly used his prior 30
day suspension to support removing him in October 2003. For example,
complainant refers to an affidavit by Employee and Labor Relations
Specialist J.W. where she stated complainant's contention that the
proposed removal letter referred to a prior expunged action was
incorrect because the EEO settlement agreement required a change in
the SF-50 (a notification of personnel action), not its elimination.
Complainant suggested that J.W. knowing about the settlement agreement,
the prior referenced discipline, and using it to remove him in October
2003 breached the settlement agreement.4 Complainant also referred to
an affidavit by an individual who supervised him from November 1993
to January 1998. The supervisor stated that the only occasions she
discussed or mentioned his involvement with complainant, her limited
understanding of the 1997 settlement agreement in general, or any facts
related to his supervision of complainant, was in response to isolated
inquiries by the Solicitor's office or the Human Resources Division
relative to complainant's MSPB appeal. She also affirmed that she once
privately briefed the newly arrived operations manager where complainant's
name came up in the context of him being named as a witness in another
employee's complaint. Complainant contended that this showed the former
supervisor supplied information on the 1997 settlement agreement to
management and the Solicitor's Office during the time he received his
proposed removal which led to his termination in 2003. Complainant also
raised some alleged disclosures which occurred after his removal.
After receiving complainant's argument and documentation on remand,
the agency issued a FAD finding that complainant provided no new facts
or evidence showing that the 1997 settlement agreement was breached,
and concluded it did not breach the settlement agreement. On appeal,
complainant' reiterates argument he made on remand.
As an initial matter, we find that complainant's contention that the
agency breached the 1997 settlement agreement by using information and/or
documentation about his 1996 30 day suspension for misuse of a government
credit card to support his 2004 removal was already adjudicated in Caston
v. Department of the Interior, EEOC Appeal No. 01A45342 (March 21, 2005),
request to reconsider denied, EEOC Request No. 05A50736 (June 1, 2005).
The Commission found no breach. Complainant concedes that March 17, 2004,
agency filing in his MSPB removal appeal, which he argues supports the
alleged prohibited use, was part of his original breach claim. Further,
prior to this, complainant already had other evidence/documentation
pointing to the same thing, i.e., the proposal and decision removal
letters that referenced the 30 day suspension, and the depositions of the
removal's proposing and deciding officials on how the 30 day suspension
was considered. As this information was available to complainant,
we consider it to also be part of the original breach claim where the
Commission found no breach. Much of what complainant submitted on remand
is simply additional documentation to support his claim that the agency
used the 1996 30 day suspension to support removing him in October 2003,
i.e., an affidavit by Employee and Labor Relations Specialist J.W. where
she indicated the settlement agreement did not expunge the 30 day
suspension from complainant's OPF, but rather, required a change in his
SF-50 [to indicate the charge was misuse of a government credit card],
and unspecified statements by his former supervisor to the Solicitor's
Office and Human Resources Division. This new documentation adds little
since complainant already had information long prior that the 30 day
suspension was considered in removing him. We have already found no
breach on this matter, and that decision is final.
Further, complainant has not shown that the additional alleged disclosures
of terms of his settlement agreement, or information made confidential
by it, both before and after his removal, were not permissible under
the settlement agreement. The 1997 settlement agreement allows the
notification of personnel action suspending him for 30 days with the
charge of misuse of a government credit card to be in his OPF, allows
the facts of the settlement agreement and its terms to be disclosed to
the parties' representatives and agency employees needing to know the
information as part of their official duties, allows reference to the
settlement agreement's terms in litigation, and allows the settlement
agreement to be used as evidence in a subsequent proceeding in which
either of the parties alleges a breach.
Accordingly, the FAD finding no breach 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
December 10, 2009
__________________
Date
1 This refers to the underlying litigation in Caston v. Department of
the Interior, EEOC Appeal No. 0120071445 (May 29, 2009). The Commission
in this case found no discrimination.
2 In an initial decision in Caston v. Department of Interior, MSPB
#SF-0752-04-0058-C-1 (March 13, 2006), the MSPB dismissed complainant's
petition for enforcement on the grounds that it did not have enforcement
authority over the 1997 settlement agreement and complainant withdrew
his petition to enforce the 2004 settlement agreement.
3 In Caston v. Department of Interior, 108 M.S.P.R. 190 (March 4,
2008), the Board found that the agency was in compliance with the 2004
settlement agreement, and denied his request that it be rescinded and
his appeal reinstated. In the prior connected recommended decision
by a MSPB Administrative Judge (AJ), the AJ advised again that the
MSPB did not have jurisdiction over the 1997 settlement agreement.
Caston v. Department of Interior, MSPB number SF-0752-04-0058-C-2,
2007 WL 2456289 (PERSONNET) (July 26, 2007).
4 Complainant also contended J.W. incorrectly misinterpreted the
settlement agreement to mean only his SF-50 needed to change, not his OPF.
We take administrative notice that SF-50s are notification of personnel
actions which are normally filed in OPFs.
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0120082596
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082596