01a54202
11-10-2005
Catherine M. Jones, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Catherine M. Jones v. Department of the Air Force
01A54202
November 10, 2005
.
Catherine M. Jones,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A54202
Agency No. 7K0J03011
DECISION
Complainant filed an appeal with this Commission from the April 12, 2005
agency decision finding that it was not in breach of paragraph 2(d) of the
February 5, 2004 settlement agreement into which the parties had entered.
Paragraph 2 of the settlement agreement provided, in relevant part,
as follows:
d. Remove witness statements from the Supervisor's Record of Employee
that were provided to support the counseling issued on 29 April 2003.
Initially, the Commission notes that this matter was previously before the
Commission in the appeal of Catherine M. Jones v. Department of the Air
Force, EEOC Appeal No. 01A44344 (March 10, 2005), req. for reconsideration
denied, EEOC Request No. 05A50793 (May 18, 2005). Complainant's previous
appeal was from an agency decision, dated May 11, 2004, in which the
agency found that it had not breached paragraph 2 (sections a, c, d,
and e) of the February 5, 2004 settlement agreement. The Commission
affirmed the agency's decision finding no breach of paragraphs 2(a),
2(c), and 2(e). However, the Commission vacated the agency's finding
that it was not in breach of paragraph 2(d), noting that because there
was no evidence in the record other than the agency's assertions of
compliance, the Commission could not determine whether the agency had
complied with paragraph 2(d). Accordingly, the Commission remanded the
matter for the agency to supplement the record with an affidavit from
an appropriate agency official who would indicate whether the witness
statements had been removed from the Supervisor's Record of Employee.
The Commission also ordered the agency to issue a new decision indicating
therein whether it was in compliance with paragraph 2(d). It is the
agency's new decision that gave rise to the instant appeal.
In its decision, the agency stated that it had removed all the witness
statements from the Supervisor's Record of Employee that were provided
to support the counseling issued on April 29, 2003. The agency provided
the March 28, 2005 affidavit of complainant's supervisor as proof of
its compliance with the settlement agreement.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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).
Upon review, the Commission affirms the agency's finding of no breach
of paragraph 2(d). The record contains the affidavit of complainant's
supervisor (Person A).<1> Therein, complainant's supervisor states
that on February 9, 2004, he personally removed all witness statements
from the Supervisor's Record of Employee that were provided to support
the counseling issued on April 29, 2003. We find therefore that the
agency has complied with paragraph 2(d) of the settlement agreement.
The agency's finding of no breach of the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 10, 2005
__________________
Date
1The affidavit indicates that as of August 17, 2004, Person A was
no longer supervising complainant.