0120162097
11-03-2016
Diego A.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Diego A.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120162097
Agency No. HSTSA213482012
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 10, 2016, 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 General Manager at the Agency's "DFW Airport" facility in Arlington, Virginia.
On March 2, 2012, Complainant and the Agency entered into a settlement agreement to resolve the EEO matter. The settlement agreement provided, in pertinent part, that:
(A2) Complainant understands that the Standard Form (SF) 50 reflecting his resignation will be expunged from his Official Personnel Folder (OPF) and replaced with an SF-50 which will reflect "Conversion to Excepted Appointment" with an action code of 570. Furthermore, the comments section of the SF-50 will state: "Required one-year TSES Probationary Period not completed;"
(B2) The Agency will expunge from Complainant's Official Personnel File (OPF) the SF-50, dated October 22, 2011, which reflected Complainant's resignation from the Agency.
(7) Complainant agrees that, if he believes that the Agency has failed to comply with the Agreement, he will notify, in writing, Department of Homeland Security Office for Civil Rights and Civil Liberties, TSA's Office of Civil Rights and Liberties, and Agency Counsel ... of the alleged noncompliance within thirty (30) calendar days of when Complainant knew or should have known of the noncompliance, and the matter will be processed in accordance with 29 C.F.R. 1614.504.
(7b) The Agency "will expunge Complainant's Official Personnel File (OPF) of any of the other underlying documents related to the downgrade of his Transportation Senior Executive Service (TSES) position, except as described in Section B(3) above;"
(8) The Agency will issue Appellant's end of year performance appraisal for fiscal year 2011 (October 1, 2010 through September 30, 2011). The Agency will do so as soon as practicable, but no later than 90 days from the Agreement Effective Date; and
(8c1) The parties will not discuss the terms of this Agreement except as necessary to effectuate the terms of this Agreement through communications with: (1) individuals directly responsible for the settlement negotiation preceding the execution of this Agreement; (2) individuals directly responsible for the Agreement's implementation; (3) individuals who have a need to know the Agreement's contents to perform official assigned duties; and (4) upon order of a court or administrative tribunal of competent jurisdiction.
The effective date of the Agreement was March 2, 2012, which was the date both parties signed.
With regard to paragraph 7c, the Senior Human Resources Consultant confirmed that all of the appropriate documentation had been removed from Complainant's OPF. With regard to paragraph 8, there is a reference to a performance document dated July 13, 2012, the issuance of which was beyond the 90 day period specified in the Agreement. In addition, Complainant claims that his performance evaluation was not in his personnel record and no copy was sent to him for review. He left the Agency in July of 2014. Complainant stated that he saw documents related to his downgrade in his OPF on his last day of employment with the Agency.
By letter to the Agency dated April 4, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency did not issue his end of the year appraisal for fiscal year 2011, within the time frame and as required by the Agreement and alleged that the Agency failed to expunge all documentation from his OPF related to his downgrade from his TSES position. In his breach claim, he also alleged that he was not selected for subsequent vacant positions.
In its May 10, 2016 FAD, the Agency concluded that there was no breach of the Agreement. The Agency reasoned that it issued Complainant's performance agreement for Fiscal Year 2011, in compliance with paragraph B8. The Agency stated that "Appellant's failure to receive this performance evaluation does not equate to the Agency violating the Agreement." The Agency also rejected the breach claim, reasoning that that all of Complainant's allegations of noncompliance are untimely and that Complainant could have checked his OPF record to determine whether his end of the year performance appraisal for Fiscal Year 2011 had been placed in his OPF.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that "documents showing [his] termination remained in [his] EOPF" and the "performance evaluation provided by the agency still had not complied with the ERC review as required at the time including awarding a performance bonus for the level 1 attained." He also asserts that his breach claim should be deemed timely, because he did not decide until recently that discrimination was the reason for the Agency's breach.
In response, the Agency maintains that Complainant is trying to re-litigate settled issues and that Complainant failed to provide any specific evidence to prove a breach of any provision in the Agreement. The Agency also asserts that Complainant's breach allegations are untimely, because Complainant was aware, or should have been aware, in 2012 of his breach claim but did not raise his claim until 2016.
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).
We find the Agreement is valid and binding.
Timeliness
The Agency argues that Complainant's appeal should be denied, because Complainant's breach notice was not timely submitted. We find that the Agency did not provide evidence to support its conclusion that Complainant's breach claim was untimely. There is also no objective evidence that Complainant was aware or would have been able to access his OPF and discern that the information was still in his folder. Therefore, we do not find that Complainant's breach claim should be dismissed as untimely filed.
Non-Compliance
We note that the DHS-TSA does not deny that a breach occurred. Instead, it claims that Complainant failed to prove a breach.
We find that the record before us supports the breach claim. The Agreement required issuance of the performance appraisal by a date certain (within 90 days of the effective date of the Agreement). The Agency appears to concede that Complainant did not receive the appraisal within the specified 90 day period. Moreover, the Agency did not offer proof to show that it issued the performance agreement within 90 days. We find, therefore, that the Agency failed to comply with the requirement that it issue the appraisal for fiscal year 2011 no later than 90 days from the Agreement effective date.
In addition, the Agreement required the Agency to expunge from his OPF any of the other underlying documents related to the downgrade and the Standard Form (SF) 50 reflecting his resignation and replaced it with an SF-50 which will reflect "Conversion to Excepted Appointment." The Agency failed to show that it met these requirements.
For these reasons, we do not find that the Agency has shown that it complied with the terms of the Agreement.
When we find a breach, we have two choices: specific performance or reinstatement of the underlying complaints. If Complainant choses to reinstate his complaint, he would have to return any monetary relief which he has obtained and the voluntary resignation would have to be rescinded. If he chooses specific performance, we require that the parties be held to the terms of the Agreement. Therefore, we order that Complainant be provided the option of specific performance of the enforceable provisions or reinstatement of his complaint.
Finally, the record shows that Complainant is raising new claims of discrimination based on subsequent events which are outside the scope of this Agreement. To the extent that Complainant may be raising new claims of discrimination or retaliation, he is advised to contact the EEO Counselor to raise his claims.
CONCLUSION
Accordingly, we REVERSE the Agency's Determination and REMAND the matter to the Agency for action consistent with the Order below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, and return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the non-disclosure provisions.
3. If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date of this decision, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (M0416)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 3, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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