Reneev.Holmes, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity CommissionSep 15, 2009
0120092114 (E.E.O.C. Sep. 15, 2009)

0120092114

09-15-2009

Renee V. Holmes, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.


Renee V. Holmes,

Complainant,

v.

Gregory B. Jaczko,

Chairman,

Nuclear Regulatory Commission,

Agency.

Appeal No. 0120092114

Agency No. NRC0813

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated March 19, 2009, finding that it was in

compliance with the terms of the November 3, 2008 settlement agreement

(Agreement) into which the parties entered. See 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1) [Complainant] has requested, and the Agency agrees, to keep the

terms and commitments contained in this Agreement confidential. The terms

and commitments in this Agreement shall only be disclosed if either party

is required to by law, rule, regulation, or competent administrative,

legislative or judicial authority. The parties may disclose the terms

and commitments of the Agreement as necessary to implement these terms

and commitments.

On February 3, 2009, complainant alleged that the agency was in breach

of the settlement agreement, and requested that the agency specifically

implement its terms. Specifically, complainant alleged that the

agency failed to keep the terms of the Agreement confidential when,

on December 17, 2008, a management official (RMO) from Human Resources

stated to complainant, in the presence of a coworker, that the terms

of the Agreement prohibited complainant from being in the part of the

facility where she was located at the time of the conversation.

In its March 19, 2009 FAD, the agency concluded that it had not breached

the Agreement, and further found that complainant's notice of breach was

untimely. On appeal, complainant argues that various Agency officials

had a conflict of interest and further requests that the Agency's brief

be stricken as untimely. Because we find complainant's breach allegation

was untimely, we need not address the matters raised by complainant on

appeal.

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).

In the instant case we note that the alleged breach occurred on December

17, 2008 when RMO stated to complainant, in the presence of a coworker

who was conversing with complainant at the time, that the terms of the

Agreement prohibited her from being in a specific part of the facility.

Under 29 C.F.R. � 1614.504(a) when a complainant believes an Agreement has

been breached, "the complainant shall notify the EEO Director, in writing,

of the alleged noncompliance within 30 days of when the complainant knew

or should have known of the alleged noncompliance." The record shows

that complainant left a voice message with the Agency's Office of Small

Business and Civil Rights on February 3, 2009, alleging breach and it was

not until February 17, 2009 that complainant notified the EEO Director

in writing. Whether using the February 3 or the February 17 date,

neither date falls within the regulatory 30 day period. Complainant

contends that it was not until some unspecified date in January 2009,

after a conversation with her priest, that she realized that the agency

breached the Agreement. Since complainant was present at the time RMO

allegedly divulged terms of the Agreement to complainant's coworker, we

find that complainant has not shown that she was unaware of the alleged

breach until January. For the above reasons we find that complainant's

breach allegation was untimely and we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

September 15, 2009

__________________

Date

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0120092114

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092114