0120092340
10-29-2009
Donald Rochon, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Donald Rochon,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120092340
Agency No. FBI200900072
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 10, 2009, finding that it was
in compliance with the terms of the June 30, 1994 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 agency
agreed:
(3) (a) to abide by all applicable confidentiality restrictions
and regulations governing disclosure of information concerning
[complainant's] service as a former employee;
(b) to take appropriate action, including investigation and discipline
to the extent permitted, and with the procedural protection required,
for violations of those restrictions and regulations;
(c) any investigation begun pursuant to paragraph 3(b) [above]
shall be concluded within 180 days of its initiation, and the [agency]
will advise [complainant] through his attorney whether, in accordance
with the provisions [the section] captioned "Disciplinary Actions," any
matters are being referred for consideration of appropriate disciplinary
action.
By formal complaint dated February 10, 2009, complainant alleged that the
agency was in breach of the 1994 settlement agreement, and requested that
the agency implement its terms. Specifically, complainant alleged that
the agency failed to conduct an actual investigation and discipline a
former Special Agent in Charge (SAC) of the agency's Dallas Division and
other agency employees when the SAC and other employees made allegedly
unauthorized and false public statements about complainant in a book
entitled, The FBI.
By letter dated May 19, 1995, complainant's attorney was advised that the
Office of Professional Responsibility (OPR) conducted an investigation.
The OPR recommended that the matter not be referred for consideration
of disciplinary action because the employees were either no longer
employed or there were insufficient facts to support disciplinary action.
However, complainant indicated that he had received documents on October
31, 2008, via a Freedom of Information Act (FOIA) request, which he
believed established that the agency did not actually conduct a proper
investigation. Specifically, he pointed to a memorandum from the SAC in
the Dallas Division stating that a further investigation into the matter
of complainant and The FBI would represent an inordinate expenditure of
investigative resources. Therefore, he recommended no further inquiry
into the matter. This memorandum was dated May 11, 1994.
In its April 10, 2009 FAD, the agency concluded that an investigation
was conducted by the OPR. Further, based on its conclusions, the OPR
recommended no referral for disciplinary action. Therefore, the agency
concluded it did not breach the settlement agreement. The agency also
noted that complainant did not contact the agency's EEO office to allege
breach of the agreement until February 2009, far exceeding the 30-day
limitation period prescribed by EEOC regulations. The agency contended
that complainant should have contacted the EEO office in 1995 when
complainant's attorney received the letter regarding the OPR's findings
and conclusions. As such, the agency determined that complainant failed
to contact the EEO office regarding his breach claim in a timely matter.
The instant appeal followed. Complainant asserted that his breach claim
was timely raised. Complainant indicated that he was not aware of the
breach until he received documents on October 31, 2008, pursuant to a
FOIA request, that indicated that the OPR investigation never occurred.
Complainant asserted that he promptly called the agency's EEO office to
report the breach on November 6, 2008, as well as writing a letter dated
November 7, 2008. Therefore, complainant claimed that he informed the
agency of the breach within the required 30 days.
With regard to his actual breach claim, complainant argued that the
agency failed to conduct an appropriate investigation. Complainant
relied on the May 13, 1994 memorandum from the SAC stating that there
should be no further investigation. Complainant further stated that
he was subjected to blatant racial discrimination back at the time of
the settlement agreement. Accordingly to complainant, such racism was
prevalent in the ranks of the agency and noncompliance was part of that
hostility toward black employees.
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).
Without ruling on the timeliness of complainant's breach claim, we find
that the evidence of record does not establish that the agency violated
the settlement agreement. Complainant relied on a memorandum dated May
11, 1994 by the SAC. We note however, that this memorandum predates
the settlement agreement. Further, it was the OPR, not the SAC, who
conducted the investigation and made its recommendations. Complainant has
not shown that the agency's investigation and recommendations were not
appropriate. Therefore, we find that complainant failed to show that
the agency violated the terms of the settlement agreement and AFFIRM
the agency's final decision.
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
October 29, 2009
__________________
Date
2
0120092340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092340