0120112283
11-16-2012
Queenie McDonald, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Queenie McDonald,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120112283
Agency No. HS10CIS000602
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated February 8, 2011, 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 worked as a Supervisory Immigration Services Officer at the Agency's Chula Vista Field Office in Chula Vista, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 24, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(D) By November 7, 2010, the Agency will amend Complainant's electronic Official Personnel File (eOPF) to reflect that she voluntarily elected to downgrade from a GS-13 to a GS-12 position for personal reasons effective October 25, 2009.
(F) Complainant shall be restored, as of the effective date of this agreement, to her permanent GS-12 Immigration Services Officer position at the Santa Ana Field Office. The Agency will give Complainant a within grade increase to GS-12, step 6, effective July 18, 2010.
(G) By November 7, 2010, the Agency will amend Complainant's eOPF to reflect that she elected a voluntary downgrade from GS-13 to GS-I 2, effective October 25, 2009. Nothing in this agreement will be construed to constitute a confidentiality clause as related to employment, and Agency employees will respond truthfully if questioned as part of a background investigation or any other review of the appellant's suitability for employment.
(H) The Agency will expunge from Complainant's eOPF the Performance Work Plan (PWP) for fiscal year 2009 which was prepared by her manager. The District Director (DD) will issue Complainant a letter by November 1, 2010, confirming she was not issued a PWP rating for fiscal years 2009 and 2010.
(I) The DD will order Complainant's manager, by close of business September 27, 2010, not to send any work files related to Complainant, except her Time and Attendance (T&A) file, to the Santa Ana Field Office.
By letters to the Agency dated November 29, 2010 and January 6, 2011, 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 is in breach of Section H by issuing two letters, instead of one within the original timeframe; Section F by deeming Complainant "reassigned" to her former position at the Santa Ana Field Office as opposed to "restored"; Sections F, G, H and I by including false and unnecessary information in Agency action letters, in her eOPF's and in her T&A file concerning her ineffective tour as supervisor at the Chula Vista Field Office. In essence, Complainant wanted the Agency to delete all indications, within her official personnel file, that she had been promoted to a supervisory position, but was unsuccessful.
In its February 8, 2011 FAD, the Agency concluded that concerning Sections D and G, it amended Complainant's eOPF to show her voluntary downgrade from GS-13 to GS-12. With respect to Section F, the Agency restored Complainant to her permanent GS-12 Immigration Services Officer position, as stipulated with a "within grade increase to GS-12, step 6," at the Santa Ana Field Office. Regarding Section H, the Agency expunged Complainant's PWP for fiscal year 2009 from her eOPF, and issued letters indicating that Complainant was not given PWP ratings for fiscal years 2009 and 2010. Also, the letters correctly noted that Complainant's duty station during the pertinent time frame was the Chula Vista Field Office. Concerning Section I, while Complainant asserted that the Agency had breached the settlement agreement by sending a Time and Attendance file together with two notes to the Santa Ana Field Office, the two notes in question are Time and Attendance-related documents. The Agency further noted that no other file was sent to the Santa Ana Field Office. The Agency maintained that it did not breach the settlement agreement.
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).
In the instant case, the Commission finds that the Agency's actions in this matter to be consistent with the language of the settlement agreement. Recognizing that Complainant details her own account in various letters to the Agency, the Commission is not swayed in finding that the Agency has breached the settlement agreement.
CONCLUSION
Accordingly, the Agency's final decision finding no settlement breach 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), 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 16, 2012
__________________
Date
2
0120112283
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112283