0120180806
04-06-2018
Hilda A.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hilda A.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120180806
Agency No. HS-CIS-25705-2016
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision, dated January 2, 2018, finding that it complied with the terms of an April 20, 2016 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
Starting in June 2015, Complainant worked as an Immigration Services Assistant, GS-1805-5, at the Agency's field office in Las Vegas, Nevada.
By letter dated December 18, 2015, the field office director terminated Complainant during her probationary period citing reasons of underperformance and unprofessional conduct. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On April 20, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The April 20, 2016 settlement agreement provided, in pertinent part, that:
1. In consideration for Complainant's withdrawal, with prejudice, of her February 11, 2016 Request to Mediate regarding her December 18, 2015 probationary termination - by the Agency management official's signature affixed hereto, USCIS will, within eight weeks after the effective date of this agreement, rescind Complainant's December 18, 2015, probationary removal, Notification of Personnel Action (SF-50) substituting a "Voluntary Resignation", SF-50, effective December 18, 2015; and
2. In consideration for the Agency's action set forth at paragraph 1 above, by her signature affixed hereto, complainant withdraws with prejudice, February 11, 2016 "Request to Mediate'' (Informal EEO Complaint HS-CIS-25705). In consideration for the Agency's action set forth at paragraph 1 above, by her signature affixed hereto, Complainant withdraws with prejudice, February 11, 2016 "Request to Mediate'' (Informal EEO Complaint HS-CIS-25705).
9A. If Complainant believes the Agency has failed to comply with the agreement's terms she shall notify, the Agency in writing . . .
9B. This notification shall be made within thirty (30) days of when Complainant knew or should have known of the alleged non- compliance . . .
Complainant, her non-attorney (family member) representative and the Agency's designated management official executed the settlement agreement. The Agency also provided a "to whom it may concern" memorandum on Agency letterhead that was dated December 18, 2015. The field office director signed this memorandum that contained the following statement:
[Complainant] was employed at the USCIS Las Vegas Field Office, as a GS-5, Immigration Services Assistant (ISA) Series 1802, from June 15, 2015 through December 18, 2015.
Subsequently, Complainant applied for a position with a different employer.2 According to Complainant, this different employer extended Complainant a tentative job offer and provided her a possible start date as early as May 30, 2017.
By letter to the Agency dated November 1, 2017, Complainant alleged breach of the subject agreement. Specifically, Complainant alleged that on April 3, 2017, the Agency had misinformed the potential employer that it had terminated Complainant. Complainant further asserted the Agency's information caused the other employer to revoke its tentative job offer.3
In its January 2, 2018 final decision, the Agency first found that Complainant's breach claim was not timely raised. Specifically, the Agency concluded, based on her breach allegation letter, that Complainant knew of the breach as early as April 3, 2017, but that she had not notified the Agency of the breach until November 1, 2017.
Second, the Agency determined that even if Complainant's breach allegation had been timely raised, the Agency had substantially complied with the settlement agreement. The Agency reasoned that the settlement agreement did not contain any nondisclosure provisions regarding the end of Complainant's employment with the Agency. The Agency reasoned that revealing that it terminated Complainant did not constitute a breach.
The instant appeal followed. On appeal, Complainant stated the Agency's response was unsatisfactory and that her breach allegation had been timely.
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 (Dec. 9, 1996). The Commission has held that the intent of the parties as expressed in the contract that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 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 (Dec. 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).
Timeliness of the Breach Claim
Upon review, we find that the Agency improperly dismissed Complainant's breach as not timely raised. The Agency presumed that Complainant knew or should have known about the alleged breach no later than April 3, 2017. However, Complainant's breach allegation stated that the potential employer received information from the Agency on April 3, 2017. It is not clear, however, when Complainant learned that the Agency had provided derogatory information or when the potential employer notified Complainant of its determination to rescind her tentative offer. Based on the present record, we do not find that it supports a determination that the breach claim was indeed untimely raised. In Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), this Commission held that the Agency had the burden of providing evidence and/or proof to support its final decisions." When the Agency dismissed Complainant's breach allegation for untimeliness, it did not sufficiently support its determination. See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
Substance of the Breach Claim
In its response to Complainant's appeal, the Agency stated that it had fully complied with the settlement agreement even if it had revealed Complainant's termination during another employer's background check. The Agency determined that once it rescinded the "termination S5-50" and replaced it with a "resignation SF-50," it had accomplished all of its affirmative obligations to Complainant in accordance with the subject agreement. We disagree. We acknowledge that the subject agreement did not expressly forbid disclosure of the termination. We nevertheless determine that the Agency breached the agreement, for the reasons discussed below.
Here, the Agency disclosure of the termination violated the overall intent and spirit, if not the letter, of the settlement agreement. Complainant withdrew her discrimination claim in exchange for the Agency providing neutral documentation in lieu of information that she had been terminated. We note that the field office director, who had initially issued Complainant's termination, later signed a termination-negating memorandum neutrally explaining Complainant's employment.
In Celinda L. v. Dep't of Homeland Sec., EEOC Appeal No. 0120141120 (Aug. 26, 2017), a settlement agreement called for removal of a complainant's termination and allowed her a resignation SF-50. The Commission found the agency had breached the agreement when it revealed negative information during an unemployment hearing. Likewise, in the present matter, by sharing the removed and rescinded termination with Complainant's potential new employer, the Agency essentially denied Complainant the neutral resignation that settlement agreement had contemplated.
After a finding of breach, there are two possible remedies: 1) reinstate the underlying complaint or 2) order specific performance. See Adina P. v. Dep't of the Army, EEOC Appeal No. 0120172320 (Oct. 3, 2017). Given the circumstances of this case, we will remand this matter to allow Complainant to select the remedy she prefers.
CONCLUSION
We REVERSE the Agency's decision finding no breach of the April 20, 2016 settlement agreement. We REMAND the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
1. Within fifteen (15) calendar days of the date of this Decision, the Agency must issue a Notice to Complainant, acknowledging this decision and providing her with an opportunity to choose one of the two remedies for breach:
a. Implement specific performance of the April 20, 2016 settlement agreement, as clarified by this decision; or
b. Rescind the April 20, 2016 settlement agreement, and reinstate the underlying EEO complaint for processing. For this option, Complainant and the Agency must return to the status quo ante, when they entered the Agreement because Commission policy provides that upon reinstatement, a complainant does not retain any benefits received under the settlement agreement. See Holmes v. Dep't of Agriculture, EEOC Appeal No. 01962207 (May 6, 1999).
2. Within thirty (30) calendar days of Complainant's response to the Notice, the Agency shall comply with Complainant's selection. If Complainant has not communicated her selection within thirty (30) days of receipt of the notice, the Agency may proceed as though Complainant selected option "a."
3. The Agency shall 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 of Complainant's choice has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e) (1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty 9(30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). 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, 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 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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
April 6, 2018
__________________
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.
2 Neither Complainant nor the Agency identified the potential employer who extended Complainant a tentative job offer and inquired into Complainant's employment with the Agency.
3 The record does not indicate when in 2017 the potential employer revoked the tentative offer.
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