01996334_r
06-15-2001
John A. Tisdale, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
John A. Tisdale v. Department of the Navy
01996334
June 15, 2001
.
John A. Tisdale,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01996334
Agency No. 9467400004
DECISION
Complainant appealed the agency's decision finding that it did not breach
the settlement agreement between the parties. On August 14, 1995, the
parties resolved complainant's complaints by entering into a settlement
agreement, which provided, in pertinent part, that complainant would
receive the following:
5(b) Grant Complainant home leave in accordance with Complainant's
federal employment history as governed by 5 C.F.R. [�] 630.606.
5(c) Place the Complainant in the position of Social Services Assistant
for a period of two years. Complainant will then be eligible for
extensions of his appointment in accordance with the Agency's applied
criteria for tour extensions as set forth in Department of the Navy
Office of Civilian Personnel Management Instruction 301. Complainant
will continue to be eligible for extensions of his overseas appointment
regardless of the Agency job position he may encumber at the time,
provided that he satisfies the applicable extension requirements.
Complainant's tours shall be extended for the maximum period allowed by
Agency regulations.
5(d) Not retaliate against the Complainant in any way for the filing
of this discrimination complaint or negotiation and implementation of
this Agreement.
. . . . . .
7 Except for persons and agencies that have a legitimate need to know,
Parties agree that the terms of this Agreement shall be kept confidential.
There is no indication that complainant alleged breach prior to the
instant appeal. On appeal, complainant alleges that the agency breached
provisions 5(b), 5(c), 5(d), and 7 of the settlement agreement. On
appeal, the agency argues that it did not breach the settlement agreement.
The Commission deems the agency's argument on appeal to constitute an
agency decision finding no breach of the settlement agreement.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased. The agency shall resolve the matter and
respond to the complainant, in writing. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or final decision.
The Commission has held that 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 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Complainant argues that the agency breached provision 5(b) when the agency
did not grant �full home leave accumulated�. Complainant argues that
he was entitled to accumulate leave while he was something other than a
current Marine Corps employee because the settlement agreement contains
no limitations. The agency argues that the settlement agreement does
contain limitations, specifically, those limitations in 5 C.F.R. � 630.606
which the settlement agreement incorporates by stating �as governed by
5 C.F.R. [�] 630.606.� The agency supports its argument with a master
leave history, which contains the amount of home leave that has been
accrued by the complainant since August 20, 1995. The complainant has
not shown, and does not specifically articulate, how the agency is not in
compliance with 5 C.F.R. � 630.606. Therefore, we find that the agency
did not breach provision 5(b) of the settlement agreement.
Complainant argues that the agency breached provision 5(c) of the
settlement agreement stating that the agency, by letter dated June
9, 1999, informed him that his tour of duty would end on November 8,
1999. Complainant argues that ending his tour on that date would not
comply with the terms of the settlement agreement. Specifically, the
complainant argues that the agency breached the portion of provision
5(c) that states that his term �shall be extended for the maximum
period allowed by Agency regulations.� The agency argues that it
did not breach the settlement agreement because it complied with the
regulations which limits tour-length to five years. The agency argues
that the regulations require an employee to be eligible for an extension,
which by definition, in part, means that the employee must successfully
adapt to the overseas environment. The agency argues that the complainant
is not eligible because he did not successfully adapt to the overseas
environment when making abusive and threatening comments concerning his
supervisor.<1> The Commission finds that complainant has failed to show
that he satisfied the applicable extension requirements. Therefore,
we find that complainant has failed to show that the agency breached
provision 5(c) of the settlement agreement.
The complainant argues that the agency breached provision 5(d) of
the settlement agreement when retaliating against him on a number of
instances. Pursuant to 29 C.F.R � 1614.504(c), a claim that a subsequent
act of discrimination violates a settlement agreement shall be processed
as a separate EEO complaint, rather than as a breach of settlement under
29 C.F.R. � 1614.504. Therefore, we find that the agency did not breach
provision 5(d) of the settlement agreement. If complainant wishes to
pursue the claims of retaliation as separate claims of discrimination,
then he may contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
The Commission does not address whether such claims may be dismissed
pursuant to 29 C.F.R. � 1614.107 in this decision.
The complainant argues that the agency breached provision 7 of the
settlement agreement when the agency revealed the substance of the
Agreement to those �other than those with a need to know.� Complainant
supports this argument with a copy of the classified advertisement section
of the Japan Update for September 28 - October 4, 1995, which refers
to the Social Services Aid position and states that it was filled as a
result of an �EEO situation� and urges readers to question the �unfair
hiring practices�. The complainant also refers to an alleged anonymous
letter that was sent to his home regarding his use of the EEO process
to take unfair advantage of the system. The agency argues that there
is no evidence that the advertisement and letter are at all connected
to the agency's actions or are a result of the agency breaching the
confidentiality clause. There is insufficient evidence to show that
the agency breached provision 7 of the settlement agreement.
The agency's decision finding no breach of the settlement agreement
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 15, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Specifically, the agency contends that the complainant did not adapt
to the overseas environment when he stated: �[h]ell, if I had an M-16
I'd go down there and blow him away right now!� Complainant, after an
administrative hearing, was placed on probationary debarment for 180
days following the incident.