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.