0120121320
06-14-2012
James Hewitt, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
James Hewitt,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120121320
Agency No. HS-TSA-00518-2010
EEOC Hearing No. 490-2011-00067X
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 23, 2011, 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
Complainant worked as a Behavioral Detection Officer at the Agency's Nashville International Airport facility in Nashville, Tennessee.
On August 22, 2011, Complainant and the Agency entered into a settlement agreement to resolve the EEO allegations set forth in the above-referenced Agency complaint number. The settlement agreement (Agreement) provided, in pertinent part, that:
(B(a) "the Agency will remove all adverse records and documents in [Complainant's] official personnel file and in his local airport discipline file, (including but not limited to any Notice of Event, Letter of Reprimand, Letter of Counseling, Letter of Guidance and Direction or other written record of [Complainant's misconduct) issued by or relating to Complainant's being under the supervision of [the named] Transportation Security Manager in 2009 and 2010."
(C5) "This Agreement constitutes the final and complete agreement of the Parties. No other promises are binding unless they are in writing and signed by the Parties."
As further background, the Agency removed all adverse records pertaining to any misconduct from Complainant's official personnel file and from the local airport file.
In addition, the Agency informed the TSM of an administrative investigation involving Complainant and another Behavior Detection Officer. The investigator requested that the TSM provide any documents that she had regarding Complainant and the other employee. The TSM looked through her informal work files. In response to the investigator's request for the documents that pertained to Complainant, the TSM inadvertently sent a document to Complainant, rather than the investigator. The record shows Complainant received a copy of an email, dated December 19, 2009 from the TSM. After Complainant notified the Agency that the TSM still had documents, the documents were then removed from the local manager's unofficial working file.
Complainant asserts that the Agency breached paragraph B (a), when, on November 16, 2011, Complainant received a copy of an email, dated December 19, 2009 from TSM, that pertained to Complainant.
In its FAD, the Agency concluded that there was no breach.
The Agency reasoned that the Agreement is very specific with regard to TSA's obligation to remove documents from the official records and it did remove those documents. The Agreement did not prevent the TSM from maintaining her own files.
In addition, the Agency found that it complied with the express obligations delineated under Paragraph B (a) because the Agency removed all adverse records in Complainant's official personnel file and in the local airport file pertaining to any misconduct. In addition, the Agency removed the documents from the local manager's unofficial working file.
Complainant appealed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency failed to ensure that all documents were removed from all files, whether in written form or generated by e-mail, including any written documents in a file managed by the TSM. Complainant also asserts that the Agency was negligent because it did not provide a policy and procedure with regard to the phrase "airport internal disciplinary file."
ANALYSIS
Initially, we note that our review is based on the specific allegations of breach that were raised with the Agency. Our review, therefore, focuses on Paragraph B.
Next, we find that the Agreement was valid and binding and was knowingly entered by both parties. We further find that the expressed wording of the Agreement is dispositive of the issues raised on appeal.
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).
In the instant case, the plain language of the Agreement at Paragraph B(a) specified "the Agency will remove all adverse records and documents in [Complainant's] official personnel file and in his local airport discipline file. There is no dispute that the Agency removed all adverse records in Complainant's OPF and in his local discipline file.
Further, the Agreement did not include any reference to any other records. The Agreement does not preclude the TSM from responding to inquiries or otherwise complying with the Agency's operational needs.
The record shows that the Agency complied with the Agreement. For these reasons, we find that the Agency did not breach the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (S0610)
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 (Z0610)
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
June 14, 2012
__________________
Date
2
0120121320
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121320