Mary C. Clayton, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
01a03565 (E.E.O.C. Aug. 29, 2000)

01a03565

08-29-2000

Mary C. Clayton, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Mary C. Clayton v. Department of the Army

01A03565

08-29-00

.

Mary C. Clayton,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A03565

Agency No. BPARFO9909J0130

DECISION

On April 11, 2000, Mary C. Clayton (hereinafter referred to as

complainant) filed a timely appeal from the March 16, 2000, final decision

of the Department of the Army (hereinafter referred to as the agency)

concerning her allegation of breach of the Settlement Agreement dated

August 18, 1999. The appeal is timely filed (see 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.402(a)))<1> and is accepted in accordance with 64 Fed. Reg. 37,644,

37,659 (to be codified as 29 C.F.R. � 1614.405). For the reasons that

follow, the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the agency breached the

Settlement Agreement (SA) dated August 18, 1999, when her job status

changed in February 2000.

Complainant worked as a waitress at the Ft. Monroe (Virginia) Club in a

non-appropriated funds position. On January 11, 2000, she was informed

of a change in the status of her position from regular part-time (25 hours

plus benefits) to a flexible position (no set number of hours and without

benefits). This change affected all three waiter positions and one food

service worker. The agency stated that this change was a Business-Based

Action necessary because of substantial financial losses incurred in

the previous year. The agency stated the union was notified and that

the action was taken in accord with the collective bargaining agreement.

Complainant argued that the change in her position violated Paragraph

3 of the SA, which provided that the agency would:

assign [complainant], Waitress, NA 3-11, Fort Monroe Club, up to twelve

(12) hours per week but no less than seven (7) hours per week, over and

above her current weekly tour of duty, commencing 22 July 1999.

She contended that, with the change in her position, she would no longer

receive a guarantee of at least 32 hours per week. The agency provided

documents showing that complainant had been assigned extra hours from the

effective date of the SA through the change in the status of her position.

Thus, we find that, at least through February 2000, the agency complied

with Paragraph 3 of the SA. Further, we find that the change in her

position was not prohibited by the SA and, therefore, does not establish

a breach.

On appeal, complainant contended that during negotiations she had insisted

that her position and the SA not be affected by any business-based

action or reduction-in-force and that she was assured that none were

contemplated. Nevertheless, those terms were not included in the written

SA and cannot be considered part of the SA.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 Hadden, Director

Office of Federal Operations

__08-29-00________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.