0120092277
09-11-2009
Kent R. Stanton, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Kent R. Stanton,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120092277
Agency No. HS07TSA001565
DECISION
Complainant contacted the Commission, alleging that the agency was in
breach of the December 5, 2008 Settlement Agreement (Agreement) into
which the parties entered. The agency subsequently filed a response,
arguing that that it was in compliance with the terms of the Agreement.
The Commission finds that complainant filed a valid and timely appeal.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504; and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) [the agency] offers [complainant] the position of Master
Transportation Security Officer-Behavior Detection Officer (BDO),
at the F-band level at Chicago O'Hare International Airport. [The
agency] agrees to place [complainant] into the next available Behavior
Detection Officers (BDO) training class held at/for [the agency] O'Hare,
Chicago. [Complainant] acknowledges and agrees that he must satisfy the
certification requirements of the position in order to be placed in the
position.
Specifically, complainant alleged that the agency breached the Agreement
by not placing him into the next training class for the position, and
that when he was placed in a training class, the instructors refused to
let him pass the class "because of [my] EEO complaint." Essentially,
complainant argues that the agency acted in bad faith by making the
promotion contingent on his passing the certification class that it had
no intention of letting complainant pass.
In its appeal brief, the agency argues that there was no breach of the
Agreement. Specifically, while the agency concedes that complainant
was not placed in the first available training class following
the signing of the Agreement, which was scheduled for the week of
January 5, 2009, the agency substantially complied with the Agreement
by placing complainant in a training class for the week of January 25,
2009 and that complainant does not dispute being placed in this class.
The agency further argues that the offer of the position was contingent
on complainant passing the certification requirements of the position
and that complainant failed four of the five certification requirements.
Finally, the agency denies that instructors refused to certify complainant
because of his EEO activity.
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).
In the instant case, we find no breach of the Agreement. We note
initially that although the agency did not place complainant in the
first available training class following the signing of the Agreement,
the agency was in substantial compliance with the Agreement when
it placed complainant in a training class in the next pay period.
Regarding the allegation that the agency acted in bad faith when the
instructors did not let complainant pass the class, complainant offers
no proof to corroborate his claims. We note that complainant has the
burden of proof to show that the agency breached the settlement agreement.
See Vega v. U.S. Postal Service, EEOC Appeal No. 01986613 (June 30, 2000);
Pearson v. U.S. Postal Service, EEOC Appeal No. 01A12918 (July 6, 2001),
req. for reconsid. denied, EEOC Request No. 05A10957 (July 6, 2001).
Complainant has not met his burden of showing bad faith by the agency and
we find that the agency has substantially complied with the Agreement.
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
September 11, 2009
__________________
Date
2
0120092277
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092277