0120141926
10-16-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120141926
Agency No. HS-TSA-01592-2011
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 19, 2014, finding that it was in compliance with the terms of the 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.
BACKGROUND
On December 18, 2012, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(B1) The Agency will remove Complainant's Letter of Reprimand, dated September 18, 2011, from Complainant's local employee disciplinary file. This letter may still be referenced in future disciplinary actions;
(C1) The Parties will not discuss the terms of this Agreement except as necessary to effectuate the terms of this Agreement through communications with: (1) individuals directly responsible for settlement negotiations preceding execution of this Agreement; (2) individuals directly responsible for the Agreement's implementation; and (3) individuals who have a need to know the Agreement's contents to perform official assigned duties;
(C3) This Agreement constitutes the final and complete Agreement by the parties. No other promises are binding unless they are in writing and signed by the Parties; and
(C4) The Parties agree that the terms of this Agreement do not establish any precedent, nor may the terms be used as a basis by the Parties to seek or justify similar terms in any subsequent matter.
This Agency / TSA Agreement was signed by Complainant on December 16, 2012. The last signatory for the Agency signed on December 18, 2012, which is the effective date. There were three signatories to the Agreement: 1) Complainant, 2) the Acting Federal Security Director for the John F. Kennedy International Airport, and 3) Agency Counsel.
The Agency stated that it removed the subject Letter of Reprimand from Complainant's local file on December 19, 2012.
Complainant asserts that, on December 18, 2012, the Agency Counsel sent an email to the Office of Professional Responsibility (OPR), along with the settlement agreement. On September 18, 2013, the TSA Office of Civil Rights and Liberties, Ombudsman and Travel Engagement forwarded a Report of Investigation to OPR for review and adjudication. The Notice of Proposed Suspension (OPR 13-11245) stated this letter rescinds JFK/Local ML2011-375, Notice of Suspension decision dated September 18, 2011. On December 18, 2013, a year after the settlement agreement was signed, OPR revoked the LOR and reissued a Notice of Proposed Suspension, based on its determination that the LOR was too lenient.
By letter to the Agency, dated January 23, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, when, on December 18, 2013, the Agency reinstated the original proposed 14-day suspension which had been reduced to a Letter of Warning, as referenced in the Agreement. Complainant contends that "TSA, then CRCL, breached the agreement when it sent the ROI to OPR to have [Complainant] suspended for the same issues listed in the original agreement."
On February 12, 2014, the Agency rescinded the Notice of Proposed Suspension. The Agency also issued a "Letter of Closure" to Complainant and informed Complainant that no other action would be taken against him. The Agency asserts that the OPR Chief was not aware of the Agreement.
In its March 19, 2014 FAD, the Agency concluded that "the Agency made a mistake by issuing the NPS, a mistake that the Agency immediately corrected upon receipt of Complainant's breach allegation." The Agency reasoned that "there is no evidence that TSA made the mistake in bad faith." Accordingly, the Agency concluded that "TSA did not breach term B2 of the Agreement."
This appeal followed. It is unclear whether Complainant is seeking reinstatement of his complaint or specific performance.
ANALYSIS
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).
On appeal, Complainant argues that the Agency breached the entire agreement, including paragraph C, terms 1 through 4, which require that the Agency not discuss the Agreement, other than for the purpose of effectuating its purpose. In addition, he argues that the Agency's reinstatement of the original proposed 14-day suspension was an act of retaliation, as well as a breach.
We recognize that, after Complainant brought the breach claim to the Agency's attention, the Agency rescinded the Proposed Notice of a 14- day Suspension. In addition, the Agency took this action within 30 days of the date on which it received notice of the breach claim. Further, we find that, by its terms, the Agreement permitted the Letter of Warning to be used in subsequent actions. However, the Agreement specifically states that the Parties agree that the terms may not be used as a basis "to seek or justify similar terms in any subsequent matter."
In the instant case, we find that the Agency did not comply with the requirement to remove the Letter of Reprimand, dated September 18, 2011, from Complainant's local employee disciplinary file and did not abide by the term that the matter not be discussed or publicized in any manner except as is necessary for the parties to carry out the Agreement.
Further, we find that the Agency has not met its burden of showing that the release of the information was consistent with the terms of the Agreement. The release was not for the purpose of, or necessary for, the parties to carry out the terms of the Agreement.
We therefore find that the Agency breached the Agreement when it failed to purge the record of the Letter of Warning and when it reissued the proposal as a reinstated 14-day suspension. The fact that the Agency took steps subsequent to the date on which it stated it removed the letter implies that the letter remained in Complainant's file. We also find that the Agency has not explained why the CRCL forwarded a Report of Investigation to the OPR which included a matter supposedly settled.
Where this Commission finds that the settlement agreement has been breached, the only two remedies available are specific performance of the terms of the Agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. � 1614.504 (c). Complainant did not specify in his notice of breach or in his statement on appeal which remedy was preferred. We therefore give Complainant the option, in accordance with the ORDER below, of either reinstating his underlying EEO complaint, or specifically enforcing the terms of the Agreement.
In summary, we find that the Agency failed to show that it had removed the Letter of Warning from Complainant's local file, failed to show compliance when the Agency shared the Agreement with others who were not involved in the negotiations, who have not been shown to otherwise be involved in effectuating the Agreement, and who then sought to use the settled incident to justify a similar term in a subsequent matter.
Because it is apparent from Complainant's appeal statement that he wishes to raise new claims of reprisal with regard to the Agency attempt to reintroduce the 14-day suspension, we find that a remand on that issue is appropriate and we direct the Agency to permit Complainant to file or amend the complaint to include new incidents of reprisal subsequent to December 18, 2012. Complainant's submissions on appeal reveal that the EEO Office was notified of the issue by Complainant on January 6, 2014. Complainant referenced the matter in his appeal stating that he has been unable to get the Agency to accept his claims for investigation. The Commission deems the Agency's action in not processing his claim as tantamount to a dismissal of that matter. Accordingly, that claim is REVERSED AND REMANDED to the Agency for further processing.
CONCLUSION
For these reasons, we REVERSE the Agency's finding of compliance. We REMAND the matter to the Agency for actions consistent with the Order below.
ORDER
1) Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the non-disclosure provision.
2) If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
3) The Agency is ordered to process Complainant's claims of reprisal with regard to the any and all incidents alleged to have occurred after the signing of the Agreement, if it has not already done so.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 tends 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), at 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
October 16, 2014
__________________
Date
2
0120141926
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141926