01A41119_r
07-20-2004
Patricia A. Hinds, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Patricia A Hinds v. Department of the Navy
01A41119
July 20, 2004
.
Patricia A. Hinds,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A41119
Agency No. 03-60201-003
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated June 30, 2003, dismissing complainant's claim that
she was not selected for any Child Development Program Administrator
positions. In the June 30, 2003 final decision, the agency also found
that complainant failed to timely raise her claim of noncompliance with
the settlement agreement entered into on November 29, 2000.
Breach of Settlement Agreement Issue
The settlement agreement provided, in pertinent part, that:
[I]b. [Complainant's] records will be expunged of all disciplinary
action/adverse action within 30 calendar days of this agreement.
On January 10, 2003, complainant contacted the agency alleging breach of
the November 29, 2000 settlement agreement when she learned on December
13, 2002, that the MWR's Managers were using matters in her settlement
agreement against her which resulted in her nonselection for the Child
Development Program Assistant position.
According to the Morale, Welfare and Recreation Director, on December 13,
2002, he and complainant attended a pre-conference hearing and during
the pre-conference hearing complainant alleged that the agency had
breached the settlement agreement by failing to expunge her personnel
record of all disciplinary actions. The Morale, Welfare and Recreation
Director recalled that complainant stated that Person B (agency selecting
official) admitted that complainant's record had not been expunged of
all disciplinary actions and that complainant was not considered for
any of the vacant Child Development Program Administrator positions.
In its June 30, 2003 final decision, the agency concluded that complainant
failed to abide by 29 C.F.R. � 1614.405(a) which states in part that
complainant shall notify the EEO Director, in writing, of the alleged
noncompliance within 30 days of when complainant knew or should have known
of the alleged noncompliance. In the agency final decision it is noted
that complainant learned of the breach on December 13, 2002, however,
she did not notify the agency of the breach until January 16, 2003.
In the instant case, we find that the agency improperly dismissed
complainant's claim of settlement breach as untimely raised. A review
of the evidence shows that the agency's EEO counselor Notice of Final
Interview indicates that complainant contacted the agency on January 10,
2003, and not on January 16, 2003. Therefore, complainant is within
the 30-day time limit provided for in 29 C.F.R. � 1614.405(a).
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).
The Commission finds that the agency has complied with provision Ib
of the November 29, 2000 settlement agreement. During complainant's
January 14, 2003 hearing in agency number 01-60201-002, the Morale,
Welfare and Recreation Director testified that he has knowledge that
all disciplinary/adverse actions were removed from complainant's
official file. On appeal, complainant has failed to articulate any
persuasive argument, or to present any evidence, in support of her
contention that management breached provision Ib of the November 29,
2000 settlement agreement.
Non-selection Claim
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that an agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission. The agency dismissed
the non-selection claim for stating the same claim as raised in agency
number 01-60201-002. Complainant's non-selection claim was decided by
the Commission in EEOC Appeal No. 01A33303 on August 28, 2003. Thus,
complainant's non-selection claim was properly dismissed by the agency
pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's decision is AFFIRMED.
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
July 20, 2004
__________________
Date