01A30803_r
12-23-2003
Patsy F. Bennett, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Patsy F. Bennett v. Department of Defense
01A30803
December 23, 2003
.
Patsy F. Bennett,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A30803
Agency No. OIG-01-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated October 25, 2002, finding that it was in
compliance with the terms of the May 21, 2001 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
Therefore the parties agree as follows:
The Agency promises and covenants to allow the Employee to resign from
federal service (preserving all her rights to employment benefits to
which she shall be entitled as of her resignation date) without reference
to the decision to remove her. Responses to any inquiries directed
to the Agency from prospective employers of the Employee shall contain
neutral language in the form annexed hereto as �Exhibit A,� referred to
in the vernacular as a �clean paper� resignation. Exhibit A shall be
maintained by [Person A], Director, Investigative Operations, to whom
the Employee can refer prospective employers in order to effectuate this
portion of the Agreement. If any employees of the Agency other than
[Person A] are contacted by a prospective employer, such employee will
provide truthful answers to any specific questions asked of them.
. . .
All references to the proposal to remove Employee shall be removed from
her official personnel folder. Records of the proposal and supporting
documentation will be retained by the Agency, subject to Privacy Act
protections, in the adverse action files of the Agency's Employee
Relations Division and by the Washington Headquarters Services, Office
of General Counsel.
Notwithstanding anything to the contrary contained herein, in the
event the Employee applies for a position with a federal agency as a
criminal investigator or police officer and the prospective employer
makes inquiry of the Agency with respect to �Giglio� issues, the Agency
shall be entitled to disclose such matters to a prospective employer.
By letter to the agency dated September 17, 2002, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant noted that she began working with another agency, the
Transportation Security Administration (TSA), in April 22, 2002.
Complainant stated that in May 2002, she learned that the Secretary of
Transportation received a written inquiry from Senator Charles Grassley's
office regarding her departure from the agency and subsequent employment
by TSA. Thereafter, complainant stated that TSA advised her on August
14, 2002, that her employment with TSA was terminated based on her
untruthful answer to a question regarding her past separations from
employment. Complainant alleged that her separation from TSA was based
on correspondence from Senator Grassley which was a direct result of
correspondence from the agency in violation of the settlement agreement.
In its October 25, 2002 decision, the agency concluded that it did not
breach the terms of the May 21, 2001 settlement agreement. The agency
noted that under the agreement it agreed to provide a neutral letter
of reference to any prospective employer who contacted Person A for
references. The agency noted that the agreement provides that any agency
employees other than Person A who are contacted by prospective employers
will provide truthful answers to any specific questions asked of them.
The agency also noted that under the agreement, it reserved the right to
disclose matters with respect to �Giglio� issues in the event complainant
applied for a position as a criminal investigator with a Federal agency.
The agency noted that TSA contacted it for suitability information after
complainant had been hired for the position of Criminal Investigator,
SV-1811-J. The agency stated that the settlement agreement provided
that records of the proposed removal and supporting documentation would
be retained by the agency, subject to Privacy Act protections. Thus, the
agency stated that when TSA requested information regarding complainant's
suitability and security clearance, the agency was obligated te release
her employment records. The agency stated that the release of this
information to another federal agency for the purpose of a suitability
investigation is a routine use permitted by the Privacy Act.
On appeal, complainant explains that she was hired by TSA in April
2002, and she claims that approximately six weeks later she learned
that the Secretary of Transportation had been contacted by Senator
Charles Grassley's office regarding complainant's employment at TSA.
Complainant states that TSA never contacted the agency in regards to
her past employment. Instead, she alleges that someone at the agency
went to see the Senator.
In response to complainant's appeal, the agency reiterates its position
that it did not breach the terms of the May 21, 2001 settlement agreement.
The agency notes that the TSA contacted its Personnel and Security
Directorate, not Person A, to obtain any �suitability and security
information� the agency might have available. The agency states that its
Personnel and Security Directorate responded with a truthful account of
complainant's security history and the circumstances of her resignation.
The agency argues that nothing in the agreement precludes it from
providing any information about complainant to a subsequent employer.
The agency notes that at the time TSA contacted the OIG Personnel and
Security Directorate, complainant had already been hired. The agency
claims that even if complainant had been a prospective rather than
current employee of TSA, paragraph (1) of the agreement states that
requests for information addressed to agency employees other than Person
A would be answered truthfully. The agency also notes that paragraph
(4) of the agreement states that in the event that complainant were to
seek employment as a criminal investigator with another federal agency,
OIG employees would respond truthfully to any inquiries relating to
complainant's reliability. Additionally, the agency notes that paragraph
(3) states that the agency will retain copies of the proposal and decision
notices subject to the provisions of the Privacy Act. The agency states
that the disclosure by the Personnel and Security Office was made pursuant
to a routine use exception under the Privacy Act under 61 FR 36919, 36927.
The agency states that on the face of the agreement, it did not intend to
conceal the nature of complainant's conduct if anyone other than Person A
were asked, if complainant's credibility as an investigator testifying in
a criminal case were at issue, or if the information was disclosable under
the Privacy Act. Finally, the agency argues that even if complainant's
allegation that someone at OIG initiated the inquiry by disclosing facts
to a Congressional staffer, such a disclosure would not constitute a
breach of the agreement by the agency. The agency states that it cannot
enter into an agreement which would prevent individuals from disclosing
to Congress instances of abuse by government officials. Further, the
agency states that it cannot withhold information from Congress relating
to Congressional oversight pursuant to 5 U.S.C. � 552a(b)(9).
The record contains a May 30, 2002 letter from TSA to Person B of
the agency's Personnel and Security Directorate, Workforce Relations
and Development Division. In this letter, TSA states that it is in
the process of determining eligibility for access to national security
information on complainant. TSA informs that complainant has been hired
as an Inspector and requests a check of the agency's indices and records
be conducted and that TSA be provided with any suitability and security
information available regarding complainant.
The record contains a response from the agency's Director of Personnel
and Security responding to the TSA's May 30, 2002 request. The agency
indicated that complainant received a Notice of Proposed Removal for
conduct unbecoming a Federal employee on February 6, 2001. The agency
further noted that on April 25, 2001, complainant received a Notice
of Decision on Proposed Removal. The agency response indicated that a
copy of both the Notice of Proposed Removal and the Notice of Decision on
Proposed Removal were provided to TSA. The agency stated that complainant
resigned on April 26, 2001. Further, the agency stated that on May
21, 2001, complainant entered into an EEO settlement agreement which
allowed her to resign from the agency for the stated reason �in order
to pursue employment elsewhere,� and without reference to the decision
to remove her.
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).
In the present case, we find that complainant has failed to show that
the agency breached the May 21, 2001 settlement agreement. According to
provision (1) of the agreement an agency employee, other than Person A,
who was contacted by a prospective employer is permitted to provide
truthful answers to any specific questions asked of them. The record
in the present case indicates that TSA's May 30, 2002 inquiry regarding
complainant was not made to Person A, but rather, to Person B of the
agency's Personnel and Security Directorate. We find that even if TSA
was considered a prospective employer, the agency did not violate the
agreement when Person B provided truthful answers to a specific request
from TSA regarding suitability and security information.<1> Further,
we find that complainant has failed to show that the agency made a
disclosure to Senator Grassley in violation of the settlement agreement.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 23, 2003
__________________
Date
1Complainant indicates in a January 17, 2003 Motion to Continue that
she has filed an EEO complaint against TSA regarding her August 14,
2002 removal. Although complainant requests that the Commission hold
the present case in abeyance pending the outcome of her complaint against
TSA, we find that such action is inappropriate as the two cases are not
inextricably interrelated.