0120114236
11-05-2012
Edward P. McEvoy, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Edward P. McEvoy,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120114236
Agency Nos. 06-44255-01435, 06-44255-01861, 07-69207-01763,
07-68742-00221 and 07-00406-01818
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated September 13, 2011, finding that it was in compliance with the terms of a July 20, 2007 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On July 20, 2007, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2. The Navy, in consideration of the mutual promises contained herein, agrees to the following:
a. To rescind complainant's termination effected 8 November 2006 and reinstate complainant to his Work Control Assistant, GS-0303-05 position effective 9 November 2006, together will all employment rights and benefits accruing as a result of the reinstatement. Documents relating to the termination will be removed from complainant's OPF. Complainant will receive all sick and annual leave accrued since 9 November 2006.
By letter to the Agency dated August 30, 2011, Complainant alleged breach. Specifically, Complainant alleged that on August 2, 2011, he checked his Total Workforce Management Service (TWMS) account and first learned that the Notification of Personnel Action (NPA) terminating him in 2006 had not been deleted from the system. Complainant stated "furthermore, this SF-50 Notification of Personnel Action is defaming, and [I] believe is intended to damage my career for my participation in the EEO process dates as stated above. Last, this is retaliatory in nature, and no excuse for damaging my career, and defaming my name Government wide." Moreover, Complainant alleged that he has not been offered a single interview for 130 positions for which he applied, as a result of the negative information in his electronic files.
The Agency found no breach of provision 2.a. The Agency stated that it conducted an inquiry into Complainant's' allegations. The Agency stated that a review of Complainant's Official Personnel file (OPF) hard copy file at its Human Resources Servicing Center, Northwest (HRSC-NW) showed no documents relating to, or referencing, Complainant's termination. The Agency also noted that a review of Complainant's TWMS account "found that a copy of the NPA of his termination was in the electronic work history section. Additionally, another NPA for 'Cancellation' of the termination action was also seen in his TWMS account."
The record contains a copy of the EEO Complaints Manager's declaration dated November 8, 2011. Therein, the EEO Complaints Manager stated that on August 30, 2011, she received a letter from Complainant's attorney alleging breach of the July 20, 2007 agreement. The EEO Complaints Manager stated that she then reviewed Complainant's online TWMS and "in the work history section of his account, I located an electronic copy of the SF-50 terminating him in 2006 and an electronic copy of another SF-50 cancelling the termination action." The EEO Complaints Manager stated that she then contacted the Division Head, Special Pay and Resolution at HRSC-NW and asked her to review Complainant's OPF to see if she could find any record of Complainant's 2006 termination. The EEO Complaints Manager stated that on September 6, 2011, the Division Head informed her via email that a review of Complainant's OPF revealed no documents referencing the 2006 termination.
The EEO Complaints Manager also stated that on August 31, 2011, she spoke with a named representative from the Automation and Information Management Division at HRSC-NW and "asked how electronic records were expunged. She explained the process and I then requested that all electronic records regarding [Complainant's] termination be removed. I specifically mentioned to her the two SF-50s I viewed in [Complainant's] TWMS account referencing [Complainant's] termination and reinstatement. [Named representative] submitted a request to expunge any electronic records pertaining to the termination of [Complainant]. On September 23, 2011, [named representative] informed me that the record had been adjusted in three databases: Defense Civilian Personnel Data System (DCPDS), TWMS, and Datamart Warehouse. On September 26, 2011, I responded to [Complainant] in writing with a final agency decision. I determined that there had been no breach of the settlement agreement."
The record also contains a copy of Division Head's declaration dated November 9, 2011. Therein, the Division Head stated that on August 31, 2011, she was contacted by HRSC asking her to contact the EEO office concerning a document Complainant found in the TWMS. The Division Head further stated that on or about September 1, 2011, she spoke with an EEO Complaints Manager concerning the instant agreement and the EOO Complains Manager asked her to review Complainant's Official Personnel File (OPF) to see if there were any documents that made reference to Complainant's November 2006 termination. The Division Head stated that after a review of Complainant's OPF, she "did not find any documents pertaining to his termination. On September 6, 2011, I notified [EEO Complaints Manager] that I did not find any documents referencing [Complainant's] termination in his OPF."
The instant appeal followed.
ANALYSIS AND FINDINGS
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).
Initially, we note that Complainant, on appeal, requests compensatory damages for the alleged breach of settlement at issue in this case. The only two remedies available for breach of a settlement agreement are specific performance of the terms of the agreement or reinstatement of the complaint at the point processing ceased. 29 C.F.R. � 1614.504(c). Although Complainant seeks compensatory damages and specific performance of the terms of the settlement agreement, compensatory damages are not an available remedy. Kessler v. United States Postal Service, EEOC Request No. 05970446 (February 26, 1999).
Provision 2.a. provides for the Agency to rescind Complainant's termination "effected 8 November 2006," and to reinstate Complainant to his Work Control Assistant position effective November 9, 2006. The subject provision also provides for the Agency to remove documents relating to the November 2006 termination from Complainant's OPF. In its final decision, the Agency stated that once it received Complainant's breach allegations, the EEO Complaints Manager took prompt action expunging all reference to the termination in Complainant's records and that his records have been updated. We note that Complainant, on appeal, does not dispute that the Agency took prompt action pursuant to portion of provision 2.a. concerning the removal of all documents relating to his 2006 termination.
The Commission has held that pursuant to 29 C.F.R. � 1614.504(b), an Agency has 35 days from the receipt of a Complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has held that if an Agency cures a breach during the 35 day period after filing a breach claim, it will be deemed in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009). On August 30, 2011, Complainant notified the Agency breached portion of provision 2.a. The record reflects that the Agency thereafter took prompt action, expunging all reference to the termination in Complainant's records and seeing that his records have been updated prior to issuing its September 13, 2011 final decision finding no breach. We find that to the extent that the Agency breached portion of provision 2.a., any such breach has been cured. Based on the above, we AFFIRM the Agency's finding no breach of portion of provision 2.a. of the July 20, 2007 settlement agreement.
As for Complainant's subsequent retaliation claims, a claim of reprisal in violation of a settlement agreement's no reprisal clause is to be processed as a separate complaint rather than as a breach of the settlement agreement. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). Additionally, 29 C.F.R. � 1614.504(c) provides that claims that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. Complainant is advised to contact an EEO Counselor if he wishes to pursue such claims. See 29 C.F.R. � 1614.504(c).
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 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), 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
November 5, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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