0120123004
12-20-2012
Nok Noonsab, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Nok Noonsab,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120123004
Agency No. IRS-11-0700-F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated June 26, 2012, 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
At the time of events giving rise to this complaint, Complainant was a former Tax Examining Technician with the Agency's Small Business/Self Employed Service Centers in Philadelphia, Pennsylvania.
On December 23, 2011, Complainant and the Agency entered into a settlement agreement to resolve an equal employment opportunity (EEO) complaint. The settlement agreement provided, in pertinent part, that:
1. The Agency agrees:
A. To rescind and replace the Complainant's Official Personnel File (OPF) the SF-50 showing the Complainant to have "resigned in lieu of termination" from employment, effective July 29, 2011, and replace it with a new SF-50 to reflect the Complainant to have "resigned", effective date July 29, 201, with no additional comments. This action will be completed no later than 60 days from the signing of this agreement by all parties....
The Agency previously issued Complainant a termination letter during her trial period in July 2011 on the grounds that her error rate on her cases exceeded standards. By letter to the Agency dated May 17, 2012, Complainant alleged that the Agency breached the settlement agreement. Specifically, she alleged that she recently applied to be rehired with the Internal Revenue Service (IRS), and was informed by an Agency Human Resources official that she had an "alert" in an internal IRS system indicating that she cannot be reemployed as a tax examiner for three years. Complainant alleged this ran counter to the promise in the settlement agreement that she would be issued a clean SF-50, and asked for proof that she was issued a clean SF-50.
In its June 26, 2012, FAD the Agency concluded that it complied with the settlement agreement. It found that it canceled the SF-50 that indicated "resignation - ILIA" with an SF-50 which indicated "resignation" with a comment for "Personal Reasons."1 The FAD was supported with copies of attached SF-50s. Complainant resigned effective July 29, 2011. The replacement SF-50 indicated it was approved on July 31, 2011, a back date.
On the allegation that Complainant was not rehired due to an alert system preventing her reemployment for three years, the Agency found this matter was not covered by the settlement agreement. It advised Complainant that if she wished to pursue this matter, she must initiate contact with an EEO counselor within 45 calendar days of effective date of the personnel action, and that it would construe her letter of May 17, 2012, as constituting notification.
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 contends that after she applied to be rehired and was told by people in the Personnel Office that she could not be a tax examiner for three years, an identified person in personnel told her the reason for this decision was because she reported sexual flirting to her manager and the EEO office, it was recorded that she did not get along with her supervisor. Complainant contends she was advised that as a result of this entry she could not be rehired. She contends that the purpose of the settlement agreement was to allow her to be rehired by the IRS, and she was not aware of the ALERTS system when she signed the settlement agreement.
In opposition to the appeal the Agency conceded that while there is an Agency Automated Labor/Employee Tracking System (ALERTS), there was nothing therein to indicate she could not be rehired for three years. The parties dispute this on appeal.
We agree with the Agency that Complainant's status in the ALERTS system is not covered by the settlement agreement. She contends that she was blackballed in ALERTS as reprisal for reporting sexual harassment. This regards a new claim of discrimination, not the settlement agreement, which obviated the Agency's decision to terminate her on the grounds of an excessive error rate.
Complainant also contends that the record does not show when the Agency adjusted her SF-50. We find there is sufficient evidence that the Agency met the 60 day time limit in the settlement agreement, or substantially complied with it. Specifically, on March 1, 2012, the Agency sent Complainant an SF-50-B Request for Personnel Action form showing that on February 8, 2012, it approved making the relevant action "resignation", with the comment for "Personal Reasons."
The FAD is AFFIRMED.
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), 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
December 20, 2012
__________________
Date
1 Complainant does not contend that the comment for "Personal Reasons" breached the settlement agreement.
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0120123004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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