Edward E. Crum, Complainant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionNov 16, 1999
01985123 (E.E.O.C. Nov. 16, 1999)

01985123

11-16-1999

Edward E. Crum, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.


Edward E. Crum, )

Complainant, )

)

v. ) Appeal No. 01985123

) Agency Nos. NCN-95-LaRC-A036

Daniel S. Goldin, ) NCN-98-LaRC-A005

Administrator, ) NCN-98-LaRC-A023

National Aeronautics and Space )

Administration, )

Agency. )

_________________________________)

DECISION

Complainant filed the instant appeal from the agency's decision dated

May 11, 1998 finding that the agency did not breach provision 3(4)

of the settlement agreement entered into by the parties on March 20, 1998.

Provision 3(4) of the March 20, 1998 settlement agreement provided that

the agency would:

remind all of its employees of their obligations under the provisions of

the Privacy Act of 1974, as amended (5 U.S.C. 552a), to keep confidential

any and all information contained in Complainant's Official Personnel

File and any other files compiled in relationship to Complainant covered

under the Privacy Act.

By letter dated April 3, 1998, complainant alleged that the agency

had failed to comply with provision 3(4) of the settlement agreement.

In the May 11, 1998 decision, the agency found that it had complied with

provision 3(4) of the settlement agreement by sending a electronic mail

message on April 1, 1998 from the Head, Office of Human Resources to all

Langley Research Center Civil Service Employees reminding all employees

that information maintained in systems of records (such as personnel

files) are protected by the Privacy Act and may not be disclosed except

when permitted by law.

EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. If the complainant believes that the agency

has failed to comply with the terms of a settlement agreement, then the

complainant shall notify the EEO Director of the alleged noncompliance

"within 30 days of when the complainant knew or should have known of

the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant

may request that the terms of the settlement agreement be specifically

implemented or request that the complaint be reinstated for further

processing from the point processing ceased. Id.

Settlement agreements are contracts between the complainant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

The Commission has reviewed a copy of the April 1, 1998 electronic

mail message and we find that the message is sufficient to constitute

compliance with provision 3(4) of the settlement agreement. Complainant

has not shown how the April 1, 1998 electronic mail message was

insufficient to constitute compliance with provision 3(4) of the

agreement.

The agency's decision finding that complainant failed to show that the

agency breached provision 3(4) of the March 20, 1998 settlement agreement

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1099)

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. 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

November 16, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations