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