0120113950
11-16-2012
Teena M. Gayle, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Teena M. Gayle,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120113950
Agency No. HSCBP006572011
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 19, 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 an Investigative Program Specialist at the Agency's Investigative Operations Division with the Office of Internal Affairs, in Dallas, Texas.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 23, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2a) Within 15 days of the execution of this agreement, Complainant will be temporarily assigned to perform duties associated with the "e-QIP" initiative in support of the IA Personnel Security Division (PSD) for a period of up to three (3) months. The length of the assignment can be extended with the concurrence of [named individual] and IOD management. While [Complainant] is performing duties in support of PSD, administrative matters, (e.g., time and attendance, leave administration, training and certifications, mid-cycle performance review, etc.) will fall under the purview of IOD Deputy Special Agent in charge [named individual], with input from PSD as warranted. Work assignments in support of the e-QIP initiative will be self-directed and/or fall under the purview of IOD HQ or PSD management. In addition, [Complainant] has the option of relocating her work station from her current location to a cubicle in the PSD area of the building.
(2c) Within 15 days of the execution of this agreement [named individual] will rescind and remove from [Complainant's] file the July 2010 Letter of Reprimand and the March 4, 2011 letter requesting clarification and update regarding [Complainant's] condition and treatment. The parties agree that [Complainant] does not have to provide a response to the March 4, 2010 letter.
By letter to the Agency dated June 14, 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 failed to honor the settlement agreement when her assignment to the PSD in support of the e-QIP initiative was terminated on or about June 7, 2011 and she was returned to her regular duty assignment. Complainant further alleged that the Agency failed to remove the Letter of Reprimand from her personnel folder as provided in the agreement between the parties.
In its July 19, 2011 final agency decision (FAD), the Agency concluded that it had complied with the March 23, 2011 settlement agreement. Specifically, the Agency indicated that the agreement obligated Complainant to be temporarily assigned to PSD for up to three months. The Agency contends that because Complainant was assigned to perform duties in support of the e-QIP initiative on April 7, 2011 and returned to her normal duty assignment on or about June 7, 2011, it has fully complied with provision (2a) of the agreement. Moreover, the Agency points out that the all other temporary support of the e-QIP initiative in the PSD ended because the PSD no longer required assistance with the project. Nonetheless, the Agency's FAD concluded that it fully complied with that portion of the settlement agreement requiring Complainant's temporary transfer for up to three months. With respect to the Agency's alleged breach of provision (2c), the Agency first indicates that Complainant's supervisor removed and destroyed the copy of Complainant's Letter of Reprimand in his possession on March 30, 2011. However, the Agency further acknowledges that by administrative oversight, the letter was not properly removed from Complainant's electronic personnel file (e-OPF). According the Agency, however, upon notification from Complainant that the letter remained in her e-OPF, an Agency employee relations specialist immediately expunged the letter of reprimand from Complainant's e-OPF in accordance with the March 23, 2011 settlement agreement.
The instant appeal followed.
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 record indicates that pursuant to the settlement agreement between the parties, dated March 23, 2011, the Agency agreed to temporarily assign Complainant to assist the eQIP initiative in the Agency's PSD division for a period of up to three months. Complainant was assigned to the PSD division in accordance with the agreement on or about April 7, 2011. The record indicates that she was moved to a cubicle in the PSD area during this time period in order to be closer to PSD staff. On or about June 7, 2011, Complainant learned that her participation in the eQIP initiative had been terminated. Complainant was returned to her former duty assignment. In accordance with the plain language meaning discussed above, we find that the Agency has complied with provision (2a) of the instant agreement. In reaching this conclusion, we note that the agreement obligated the Agency to temporarily assign Complainant to the PSD for a period of up to three months. The record demonstrates that Complainant worked on the eQIP initiative for two months from April 2011 through June 2011. Complainant has failed to demonstrate that the Agency failed to comply with the specific provision of the agreement requiring the Agency to temporarily assign Complainant. In that regard, we are not persuaded by Complainant's arguments on appeal that she could have continued working in the PSD division because additional help was needed despite the Agency's argument to the contrary.
The Agency acknowledges that by administrative oversight, Complainant's letter of reprimand was not removed from Complainant's eOPF. In that regard we find that the Agency has breached provision 2c of the agreement as alleged. However, the record further indicates that the Agency cured its breach immediately upon notification from Complainant. On June 28, 2011, an employee relations specialist expunged the letter from Complainant's eOPF in accordance with the agreement between the parties. While we find that the Agency failed to remove Complainant's letter of reprimand from her eOPF within 15 days of the date of the agreement, we further find that the Agency's actions have cured any breach. The Commission has held that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Lazarte v. Dep't of Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996).
CONCLUSION
Accordingly, the Agency's letter of determination finding no breach of the settlement agreement is affirmed for the reasons set forth herein.
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
0120113950
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113950