0120063900
02-27-2007
Debra Washington, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Debra Washington,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200639001
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 16, 2006, finding that it was
in compliance with the terms of the March 19, 2003 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.
In exchange for complainant's withdrawal of her formal complaint the
agency agreed to:
(4) Transfer [named individual] out of complainant's
supervisory chain.
By letter to the agency dated April 19, 2006, 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 violated provision (4) of the agreement when
[named individual] was placed in the position of Acting Chief of Police.
Complainant contends that in violation of the agreement between the
parties the agency's action placed [named individual] "directly in [her]
chain of command."
In its May 16, 2006 FAD, the agency concluded that it had not breached
provision (4) of the agreement as alleged by complainant. 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).
In the instant case, the agency indicates that it has fully complied
with the provision at issue herein. Specifically, the agency asserts
that complainant is not in the chain of command of [named individual]
because she is assigned to the mid-day shift, while [named individual]
works the day shift. The agency further indicates that [named individual]
was placed in the position of Acting Chief of Police temporarily,
during the month of April, 2006 and is no longer in that position.
In addition, the agency notes that even assuming that [named individual]
had been assigned to a position within complainant's chain of command;
the settlement agreement is silent as to the duration of time with respect
to provision (4). The Commission finds that the plain meaning of the
settlement agreement includes an understanding that the genuine future
needs of the agency, and the subsequent career decisions of complainant
or other agency employees including [named individual], can reasonably
be expected to impact both the structure of the agency as well as
complainant's chain of command. Therefore, we find it reasonable that
the agency's needs would have evolved to necessitate [named individual]
serving in an acting capacity on a temporary basis three years after
complainant entered into the settlement with the agency. Consequently,
the Commission concludes that the agency did not breach the March 19, 2003
settlement agreement. The record supports the agency's determination that
[named individual] was never placed in complainant's chain of command
in violation of provision (4).
CONCLUSION
After careful review of the record herein, the Commission finds that
the agency's determination that it complied with the specific terms of
the agreement between the parties was proper. The agency's decision is
hereby affirmed for the reasons set forth herein.
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
February 27, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120063900`
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063900`