0120091811
09-03-2009
Usman M. Baig,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120091811
Agency No. NRC0809
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 11, 2009, finding that
it was in compliance with the terms of the October 2, 2008 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Upon execution of this Settlement Agreement (SA) by all parties,
the agency shall rescind the letter proposing complainant's removal
and the decision letter terminating complainant's employment and remove
those letters from complainant's Official Personnel File.
(2) Upon execution of this SA by all parties, the agency shall
remove from complainant's OPF the previously issued SF-50 reflecting
"Removal" was the reason for the termination of complainant's employment,
and replace it with an SF-50 that states "Retirement" as the reason for
separating from the agency and indicate "voluntary" retirement in all
appropriate fields or codes on the form.
(3) Complainant may direct inquiries for employment references to
[named individual], Director, Division of License Renewal, Office
of Nuclear Reactor Regulation. The agency agrees to give neutral
references in response to any such inquiries; that is to only provide:
dates of employment, positions held, salaries, and if asked the reason
for leaving the agency as "retirement", and
(4) In consideration for the agency's promises above, complainant
voluntarily and irrevocably retires and separates from the agency and
the federal service, retroactive to September 16, 2008.
By letter to the agency dated January 10, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to properly calculate his retirement.
Further, complainant indicated that he was under duress when he signed
the agreement. As such, the settlement agreement should be void.
In its February 11, 2009 FAD, the agency concluded that it has complied
with the settlement agreement. The agency indicated that complainant's
issues with retirement benefits are not within the purview of the agency.
Further, the agency determined that it has complied with the provisions
of the settlement agreement. In addition, as to complainant's claim of
coercion, the agency indicated that complainant signed the settlement
agreement freely. The agency did not find complainant's claims to
be persuasive. This appeal followed.
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).
After careful review of the record, the Commission agrees with the
agency that nothing in the terms of the settlement agreement required
the agency to provide complainant with retirement benefits or addressed
when they were to be paid or how they were to be calculated. Rather,
the agreement required the agency to revise its official records to
reflect that complainant voluntarily retired from the agency. The agency
did so and therefore fulfilled its obligations under the agreement.
Determinations concerning retirement benefits received by former agency
employees are made by the Office of Personnel Management (OPM), and
not the agency. OPM was not a party to the settlement agreement and,
as already noted, there was no provision of the agreement concerning
the payment of retirement benefits. The record further indicates that
the agency timely processed complainant's request for separation and
appropriately forwarded complainant's retirement package to OPM for
retirement benefits processing. The record indicates that OPM later
determined that complainant's retirement could not be processed because
he was already a retired federal employee receiving retirement annuity
benefits since July 2006. The agency asserts that complainant failed to
notify it of his status as a retired federal employee at the time of his
employment by the agency, and indeed signed a statement indicating he was
not receiving any retirement or pension benefits despite the fact that
he was. As a result, the agency was required to correct his personnel
records, adjust his retirement withholdings and reduce his agency salary
by the amount of the annuity.1 Therefore, the agency argues it had
inaccurate information concerning his retirement status at the time the
settlement agreement was signed and any concerns complainant has with
his retirement benefits following the settlement agreement were caused
by complainant's own misrepresentations of his status. Based on these
facts, we conclude that the record does not support complainant's claim
of a breach of the settlement agreement by the agency.
Finally, complainant argues that the settlement agreement should be set
aside because he was coerced into signing it. He vaguely alleges, without
specificity, that he was threatened by agency officials with being fired
and that his mental capacity at the time of the execution of the agreement
was impaired due to the effects of diabetes. With regard to the alleged
threats, we note that complainant had already been removed from federal
service at the time of the negotiation and execution of the settlement
agreement. Therefore, coercion cannot be established. With regard to
his mental condition, he provides no evidence in support of his claim.
Moreover, we note that he was represented by a union official throughout
the negotiations of the agreement. Therefore, this claim is also without
support. We also note that the agreement provided complainant with seven
days to revoke it and, while complainant asserts he did not receive a copy
of the signed agreement (although he had a copy of the draft agreement)
until about a month after it was executed, there is no indication in the
record that complainant attempted to revoke the agreement within seven
days of his receipt of the executed copy. Finally, complainant asserts he
did not consult an attorney. However, the agreement advised complainant
of his right to consult an attorney prior to signing it, but he did
not choose to avail himself of that right. In sum, complainant has not
demonstrated that he was coerced into signing the settlement agreement.
Accordingly, the agency's decision finding it is in full compliance with
the terms of the October 2, 2008 settlement agreement is affirmed.
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 3, 2009
__________________
Date
1 Complainant argues that the February 2009 reduction of his salary
amounted to a further violation of the settlement agreement. However, he
does not explain how, as the agreement does not contain any provisions
regarding salary or retirement benefits at all. Complainant also
asserts that the agency violated the agreement's confidentiality clause
when he received correspondence from the agency's Civil Rights Office
acknowledging receipt of his breach claim. There is no basis for finding
a breach in this regard.
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0120091811
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091811