0120170589
03-14-2018
Jonelle R.,1 Complainant, v. Kirstjen M. Nielsen, 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
Jonelle R.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120170589
Agency No. HS-TSA-00811-2013 & HS-TSA-02093-2013
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) claiming the Agency was not in compliance with the terms of a settlement agreement into which the parties entered. See 29 C.F.R. � 1614.504(b).
BACKGROUND
At the time of events giving rise to the underlying complaints, Complainant worked as an Assistant Federal Security Director for Mission Support at the Agency's Baltimore Washington International Airport facility in Baltimore, Maryland.
Complainant filed two complaints alleging employment discrimination, identified as Agency Nos. HS-TSA-00811-2013 & HS-TSA-02093-2013. The complaints were investigated and eventually consolidated for a hearing before an EEOC Administrative Judge
On September 13, 2016, while the complaints were pending a hearing, Complainant and the Agency participated in a settlement conference under the guidance of a mediator where they reached a negotiated a settlement agreement, executed on September 14, 2016.
The settlement agreement provided, in pertinent part, that in resolution of her two EEO complaints, the Agency would pay Complainant her attorney's fees in the amount of $22,489, by September 16, 2016, and she would complete an Application for Immediate Retirement by September 16, 2016, with an effective retirement date of no later than December 1, 2016.
The Agency filed the settlement agreement with the Administrative Judge immediately after it was executed and, on October 14, 2016, the Administrative Judge dismissed the complaints pursuant to the terms of the agreement.
It is undisputed that on September 16, 2016, Complainant submitted a completed retirement application, and the Agency processed the application.
However, in a letter dated October 3, 2016, the Agency, through counsel, advised Complainant's attorney that it would not comply with the Agreement and considered it null and void. The Agency claimed that it discovered through its Office of Human Resources that Complainant had previously submitted an application for retirement prior to the settlement negotiations. The Agency further claimed that it agreed to pay her attorney's fees only because the mediator had told it during negotiations that was the only way to obtain Complainant's retirement. The Agency maintained that it considered the "non-disclosure" of the earlier retirement application during mediation to be a misrepresentation of Complainant's intent to retire.
On October 11, 2016, Complainant's counsel filed a "Notice of Breach" with the Agency, asserting the Agency violated the agreement by declaring it void and notifying the Agency of a 30-day period in which to cure the deficiency.
It appears from the record that the Agency never issued a formal decision on Complainant's breach notice as required by 29 C.F.R. � 1614.504.
The instant appeal from Complainant followed. On appeal, Complainant does not dispute that she filed several earlier retirement applications. However, she notes that they were unsigned and therefore ineffective. She explains that she periodically submitted unsigned applications to Human Resources as part of an inquiry about her benefits should she retire on a particular date. Counsel for Complainant also points out that the parties signed a confidentiality agreement specifically precluding disclosure of "proposals made or the views expressed by" the mediator, and argues that EEOC has consistently rejected challenges to the validity of agreements based on conduct or statements made during settlement discussions.
The Agency, in its response to the instant appeal, reiterates its position that it considers the agreement to be void due to what it characterizes as "Complainant's material misrepresentation" that "induced" the Agency to agree to pay her attorney's fees.
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).
In this case, the parties were fully represented by counsel. A mediator, apparently using shuttle negotiations, presented the proposals and counter proposals. Based on the discussions during mediation, the parties reached agreement.
It is clear, that while Agency counsel may have been unaware of the earlier unsigned retirement application, it was in the Agency's possession in its Office of Human Resources at the time of the settlement negotiations and the execution of the agreement. There is no evidence that Complainant or her counsel misrepresented facts at the mediation. Nor, is there any evidence that she and/or her counsel concealed information to which the Agency was entitled. As such, we find no support for the Agency's position of wrongful inducement and no basis for a nullification of the agreement reached by the parties. The agreement clearly states that the Agency would pay Complainant's attorney's fees if she filed her retirement application by September 16, 2016. Complainant fulfilled her obligation under the agreement. Accordingly, we find the agreement valid and binding on both parties.
CONCLUSION
We REMAND this matter to the Agency to undertake actions consistent with this decision and the Order below.
ORDER
1. Within forty-five (45) calendar days of the date this decision is issued, the Agency shall pay Complainant the attorney's fees agreed to in the September 14, 2016 settlement agreement in the amount of $22,489.
2. Complainant is also entitled to additional attorney's fees for having to pursue this appeal. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within sixty (60) calendar days of this decision is issued. 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 (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 (M0617)
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. 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.
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
__3/14/18________________
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
0120170589
5
0120170589