Mary Kruckenberg, Complainant,v.Janet Reno, Attorney General, Department of Justice, Immigration and Naturalization Service, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01985911 (E.E.O.C. Mar. 31, 2000)

01985911

03-31-2000

Mary Kruckenberg, Complainant, v. Janet Reno, Attorney General, Department of Justice, Immigration and Naturalization Service, Agency.


Mary Kruckenberg v. Immigration and Naturalization Service

01985911

March 31, 2000

Mary Kruckenberg, )

Complainant, )

)

v. ) Appeal No. 01985911

Janet Reno, ) Agency Nos. I-94-6560

Attorney General, ) I-94-6513

Department of Justice, ) I-94-6536

Immigration and Naturalization Service, ) I-93-6331

Agency. ) Hearing No. 320-95-8017X

________________________________________)

DECISION

On July 22, 1998, complainant filed the present appeal with the Commission

alleging that the agency had breached the settlement agreement entered

into by the parties.<1>

Complainant and the agency entered into a settlement agreement on August

4, 1995. The settlement agreement provided, in pertinent part, that:

. . . .

(2) The Agency will place the Complainant in a Freedom of Information

Act/Privacy Act Officer position at a GS 9 grade level in the Denver

District Office;

The Agency will give the Complainant a within grade increase in pay

retroactive to May 1, 1994;

. . . .

(5) The Agency agrees to remove all negative references to the

Complainant's performance from Complainant's personnel files including but

not limited to revising her last yearly performance evaluation to reflect

that her performance was fully successful, deleting any references to the

Performance Improvement Plan, removing any references to her proposed

dismissal, withdrawing a proposal for her demotion and removing any

references to unacceptable performance. Complainant hereby acknowledges

that a Fully Successful rating for her last yearly performance evaluation

is acceptable to her and that she will not file a complaint in any forum

regarding this rating.

. . . .

According to complainant she sent a letter to the agency dated February

18, 1998, alleging that the agency was in breach of the settlement

agreement, and requested that the agency specifically implement the terms

of the agreement.<2> In this letter, complainant allegedly claimed

that the agency breached the terms of the settlement agreement during

another employee's Merit Systems Protection Board (MSPB) hearing in

which complainant testified, when the agency representative referred

to complainant's unsatisfactory performance appraisal. In addition,

complainant claimed that the agency breached the agreement when

complainant was asked to respond to a Labor Management Case.

The agency failed to respond to complainant's letter of noncompliance

and on July 22, 1998, complainant filed the present appeal.

In response to complainant's appeal, the agency argues that complainant's

appeal is inappropriately before the Commission because she failed to

exhaust her administrative remedies and the appeal is untimely and,

in the alternative, states that complainant failed to establish that

the agency violated the settlement agreement. The agency claims that

complainant mistakenly alleged noncompliance with a sub-component of

the agency (INS) and not with the agency itself (DOJ). In addition,

the agency argues that complainant failed to file a timely appeal

with the Commission. Specifically, the agency claims that under 64

Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.504(b)), complainant is required to appeal to the

Commission within thirty-five (35) days after she has served the agency

with allegations of noncompliance. Thus, the agency claims that assuming

complainant's allegation of noncompliance with the sub-component of the

agency on February 18, 1998, was sufficient, complainant's appeal to

the Commission on July 22, 1998, was four months late. Alternatively,

the agency argues that, assuming the Commission has jurisdiction in this

case and complainant's untimeliness should be waived, complainant failed

to establish that the agency violated the agreement. Specifically,

the agency concedes that during the MSPB hearing, the representative

asked complainant whether she received an unsatisfactory performance

appraisal while she was an Administrative Officer; however, the agency

claims that the representative knew these actions were taken because

of knowledge independent of the information contained in complainant's

personnel files. The agency representative notes in a signed statement

that as far as she is aware, complainant's personnel files have been

purged in accordance with the terms of the agreement. With regard to

complainant's claim that the agency breached the agreement by asking

complainant to respond to a Labor Management Case, the agency states

that there was no term in the agreement prohibiting such an assignment.

The record reveals that complainant first became aware of the alleged

noncompliance at a February 12, 1998 MSPB hearing. The record also

shows that complainant contacted the agency's Acting EEO Director

alleging noncompliance on February 18, 1998. We find that complainant's

filing with the sub-component of the agency is the same as filing with

the agency itself. Therefore, we reject the agency's contention that

complainant did not contact the EEO Director as required under Volume 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 1614.504(a)). In addition, we find

that complainant's appeal was timely under 29 C.F.R. � 1614.504(b), which

states that a complainant may file an appeal thirty-five (35) days after

she has served the agency with allegations of noncompliance. Accordingly,

once a complainant serves the agency with an allegation of noncompliance,

she may file her appeal anytime after thirty-five (35) days of serving

the original notice of noncompliance with the agency. The Regulations

provide that in a case where an agency makes a determination with regard

to the complainant's allegation of noncompliance, the complainant must

file an appeal within thirty (30) days of her receipt of the agency's

determination. 29 C.F.R. � 1614.504(b). In the present case, since

the agency did not respond to complainant's allegation of noncompliance,

we find that complainant's filing of an appeal with the Commission more

than thirty-five (35) days after serving the allegation of noncompliance

with the agency was timely.

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 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).

With regard to complainant's allegations of noncompliance, we find that

the terms of the settlement agreement address the agency's removal

of all negative references to complainant's performance from her

personnel files, including deleting any references to an unacceptable

performance evaluation. In the present case, complainant claims that

the agency breached the terms of the settlement agreement when an agency

representative referenced complainant's unsatisfactory performance

evaluation at an MSPB hearing. In the present case, we find that when

an agency agrees to remove all references to complainant's negative

performance, the subsequent disclosure of any previous unsatisfactory

performance violates the settlement agreement. Thus, we find that the

terms of the agreement were breached by the agency representative's

questioning during the February 12, 1998 MSPB hearing. In addition,

we note that there is no evidence that the agency removed all negative

references to the complainant's performance from her personnel files.

With regard to complainant's allegation that the agency breached the

settlement agreement when it assigned complainant a Labor Management

case, we find that the agency did not breach the settlement agreement

in this instance. The terms of the agreement provide for the agency to

place complainant in a Freedom of Information Act/Privacy Act Officer

position at the GS 9 grade level. Complainant does not state that

the agency failed to place her in this position. Instead, complainant

challenges the type of assignment she has received at the GS 9 level.

We find that the types of assignments given to complainant in the GS 9

position is beyond the scope of the settlement agreement.

The agency's decision that it did not breach the agreement with regard

to the negative reference at the MSPB hearing is REVERSED and we REMAND

the matter. The agency's decision that it did not breach the settlement

agreement with regard to the assignment of work is AFFIRMED

ORDER

The agency shall specifically implement the terms of the August 4,

1995 agreement, in particular provision (5) thereof. Within thirty

(30) calendar days of the date this decision becomes final, the agency

shall complete compliance with the subject agreement, in particular all

negative references to complainant's performance should be expunged

from her personnel files. Further, the agency should insure that no

agency officials refer to the subject negative references in any forum.

A copy of documentation indicating the agency's compliance with this

Order must be submitted to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 19848,

Washington, D.C. 20036. 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

March 31, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.

2We note that the record does not contain a copy of the February 18,

1998 letter.