0120131614
08-15-2013
Karen L. Ferguson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Karen L. Ferguson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120131614
Agency No. F-08-6374
DECISION
On March 5, 2013, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after filing a notice of breach with the Agency on a settlement agreement the parties entered. The appeal is accepted. 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 Assistant Special Agent in Charge at the Agency's FBI Buffalo Division in Buffalo, New York.
Believing that the Agency subjected her to unlawful discrimination, Complainant filed a formal EEO complaint, which was investigated. Complainant requested a hearing before an EEOC Administrative Judge. Prior to there being any hearing, the parties on June 14, 2011, entered into a settlement agreement to resolve the matter. It provided, in pertinent part, that:
7. The Federal Bureau of Investigation will:
...[second bullet] seal (by placing a sealed envelope with a copy of this agreement on top) the Electronic Communications (ECs) from the Inspection Division, to CID/Buffalo, dated July 20, 2007 (case ID# 297-HQ-A12770961, Buffalo Division Inspection; ROI Ex. 9(F) [Document 1;] and from the Director's Office, to Human Resources/Weapons of Mass Destruction/Buffalo, dated September 13, 2007 (case ID# 67F-HQ-C1402516; ROI Ex. ((E)), regarding the 2007 inspection of the Buffalo Division [Document 2]. [The case ID numbers were printed in the documents to be sealed -- and used in the settlement agreement as a way to identify them, along with other identifying information in the documents, e.g., from and to whom the ECs were sent and directed, and the dates of the ECs. The ROI refers to the Report of Investigation on EEO complaint F-08-6374]....
8. Should the Complainant believe that there has been a violation of this Agreement by the Agency, she will notify the Associate General Counsel, Employment Law Unit II, in writing within thirty (30) calendar days from the date when she knew or should have known of the alleged non-compliance.
The Agency will have fifteen (15) calendar days from receipt of notification by Complainant to review the matter and inform Complainant of how and when the matter will be resolved.
9. Should the Agency not respond to the Complainant, or if the Complainant is dissatisfied with the attempts by the Agency to resolve the matter, the procedures set forth in 29 C.F.R. � 1614.504 shall govern.
In the settlement agreement, the Agency also agreed to pay Complainant a substantial lump sum for compensatory damages. Complainant was represented by an attorney.
On December 8, 2011, Complainant's attorney emailed the AJ, with a copy to Agency attorney 1, that Documents 1 and 2 were misidentified in the settlement agreement. Specifically, Document 1 referred to the document located in ROI Ex. 9(G), not 9(F), and Document 2 referred to a document located in ROI Ex. 9(E), not simply "E." On the same day the AJ replied, with a copy to Agency attorney 1, that he no longer had jurisdiction over Complainant's case, and suggested perhaps errata would address the matter.
On December 8, 2011, Complainant's attorney, referring to the above, emailed Agency attorney 1. Agency attorney 1 replied on December 12, 2011, that the Agency had no objection to an errata to the settlement agreement, but would not agree to any additional attorney fees arising out of the situation. On December 21, 2011, Complainant's attorney emailed a proposed "addendum" to the settlement agreement. It contained new language indicating that "all filed original and copies" of Documents 1 and 2 would be sealed in an envelope. It contained the changes in the identifying information for Documents 1 and 2 that were raised with the AJ, as well as giving the full ID numbers written in them -- the last letter for each was left off the settlement agreement.
We note that while Complainant sought to clarify identifying information for Document 2, the document is the same one identified in the settlement agreement. This is not the case for Document 1. The authoring and receiving offices of the two documents in ROI Ex. 9(F) and 9(G), as correctly noted by Complainant, are different, as well as the substance thereof. The document in ROI Ex. 9(G) was from Inspection and to the Buffalo Inspection Human Resources.
On January 4, 2012, Agency Attorney 1 responded that he objected to the language "all filed original and copies" as being the original intent of the settlement agreement, but all other revisions were acceptable. When Complainant's attorney balked, Agency attorney 1 replied on February 13, 2012, that the Agency previously sealed the two referenced documents, and it was its position that the mediation process which included direct discussions with Complainant resulted in a settlement agreement which reflected the intent of the parties at that time. Agency attorney 1 added that for purposes of correcting the record only, the Agency would agree to an addendum addressing the case ID number and location of the EC in the ROI, and upon its receipt would attach it to the original settlement agreement.
Thereafter, Complainant's attorney exchanged emails with Agency attorney 1 attempting to clarify what was sealed, with both parties being somewhat vague. She also asked who had access to the sealed documents. On March 21, 2012, Complainant's attorney narrowed down the inquiry by specifically asking for confirmation on whether the referenced documents located in ROI Ex. 9(G) and 9(E) were sealed, to which Agency attorney 1 responded "Confirmed."
At some point another attorney in the law firm representing Complainant took over her case. On September 21, 2012, the attorney sent an email to Agency attorney 1 recounting the above misidentifications. The attorney added for the first time that since the document in ROI Ex. 22 dated September 13, 2007, was identical to the one in ROI Ex. 9(E) [Document 2], save a receipt stamp, in order for the sealing of the Ex. 9(E) to accomplish its intended purpose, ROI Ex. 22 must be sealed as well. He enclosed another proposed addendum to the settlement agreement incorporating all the above, and asked for information on who had access to the sealed documents.1
On November 9, 2012, Agency attorney 1 responded that he confirmed on March 30, 2012 that the documents sealed pursuant to the settlement agreement were the same as those indicated in Complainant's attorney's email dated March 21, 2012. He wrote this concluded their discussion on this issue and in lieu of the addendum brought clarification to the matter. Complainant's attorney countered this did not address ROI Ex. 22, and asked for the Agency to sign the proposed addendum.
On January 7, 2013, Complainant's attorney notified Agency attorney 1 that he considered the Agency to be in breach of the settlement agreement, and asked to be notified if anyone else in the General Counsel's office needed notification. After receiving no reply, Complainant filed an appeal in March 2013.
On appeal, Complainant argues that the Agency breached the settlement agreement by failing to show that the correct documents were sealed. She argues that the Agency's one word reply of "confirmed" was insufficient because it does not address ROI Ex. 22, nor the problem of misidentifications of Documents 1 and 2 in the settlement agreement. She argues that in the event of future issues regarding the settlement agreement, proof of modification of the original version of the settlement agreement based on an exchange of emails could be problematic, and hence an addendum is needed. Complainant contends that she first received the ROI in December 2011, and discovered the misidentifications of Documents 1 and 2 at that time. A transmittal cover page reflects that the Agency sent the ROI to Complainant with hearing rights in March 2009, and the record reflects she asked for a hearing in April 2009. Complainant argues that she is entitled to additional attorney fees for work to seek enforcement of the settlement agreement.
In opposition to the appeal, Agency attorney 1 argues that Complainant failed to timely file her notice of breach. He argues that the Agency confirmed the correct documents were sealed on March 30, 2012, and Complainant waited until January 7, 2013, to formally allege breach, beyond the 30 day time period. The Agency's opposition brief contains a certificate of mailing indicating it was mailed to Complainant's most recent attorney.
In response to the Agency's opposition, Complainant argues that the Agency's brief should be removed from record because it was untimely filed and not sent to her or her attorney. She argues that she sent her appeal brief to the Agency on April 4, 2013, and it did not file its opposition brief until May 21, 2013, beyond the 30 day time limit to do so. 29 C.F.R. � 1614.403(f).
ANALYSIS
As an initial matter, we decline to strike the Agency's opposition brief because Complainant has not shown she properly served the Agency with her appeal brief. She submits proof that by April 10, 2013, the Agency's "Assistant AG [Attorney General] for Administration" received her appeal brief by registered mail. We cannot discern from the record whether this was the proper office for making such service. Complainant also served Agency attorney 1 and another agency attorney by email. While she submits evidence of receipt by the second agency attorney, she does not do so for Agency attorney 1, who was the person who responded to Complainant's emails regarding alleged breach and authored the opposition brief. Further, the EEO complaint processing regulations at 29 C.F.R. Part 1614 do not expressly address or define service by electronic mail. See Fletcher v. Department of Commerce, EEOC Appeal No. 0120100071 (March 30, 2011).
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).
Because the Agency did not issue a final Agency determination (FAD) notifying Complainant of her appeal rights, we find that Complainant's appeal to the EEOC is timely. 29 C.F.R. � 1614.504(b).
We find that Complainant's communications with the Agency starting in December 2011 amounted to an initial breach claim because she was arguing in part that the Agency may have sealed the wrong document, i.e., Document 1 which was located at ROI Ex. 9(G), not 9(F).
We find that the Agency showed that it complied with the settlement agreement when on March 30, 2012, it confirmed that Documents 1 and 2, as clarified by Complainant on March 21, 2012, were sealed.
After the confirmation, Complainant did not contact the Agency alleging any sort of non-compliance until September 21, 2012. She accepted the Agency's claim of compliance for nearly six months before contacting the Agency again to allege non-compliance. We find that Complainant waiting nearly six months to claim breach after the Agency's confirmation of compliance on March 30, 2012, was untimely. See Settlement Agreement terms 8 and 9, and 29 C.F.R. � 1614.504(a). Moreover, even if we considered Complainant's second series of alleged non-compliance starting on September 21, 2012, we would find that the Agency complied with the settlement agreement because it sealed Documents 1 and 2, as listed in the settlement agreement and clarified by Complainant on March 21, 2012.
Because we find that the Agency complied with the settlement agreement, attorney fees seeking enforcement thereof are denied.
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 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 (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
August 15, 2013
__________________
Date
1 The second proposed addendum did not contain the "all filed original and copies" language.
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0120131614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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