01a40420_r
08-18-2004
Roberta L. Fitzsimmons, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Roberta L. Fitzsimmons v. Department of Defense (Defense Logistics
Agency)
01A40420
August 18, 2004
.
Roberta L. Fitzsimmons,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A40420
Agency No. DLA-03-002B
DECISION
Upon review, the Commission finds that the agency's September 12,
2003 decision not to reinstate complainant's complaint of unlawful
employment discrimination that the parties had settled is proper.
See 29 C.F.R. � 1614.504. On April 2, 2003, the parties entered into a
settlement agreement resolving the complaint. The settlement agreement
provided, in pertinent part, that:
[An identified managerial official] agrees to abide by the union contract
regarding placing employees on details based upon seniority.
By letter dated July 24, 2003, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant indicated
that two identified individuals were placed on details on or about June
12, 2003, although complainant had more seniority than the individuals.
In response, the agency stated that the two individuals were not
detailed or reassigned, rather they were identified as Subject Matter
Experts (SMEs) to participate with DDC A-76 contractors to assist
in the preliminary stages of the A-76 study for DDJC. Specifically,
the agency indicated that no official personnel actions were processed
because of the limited and intermittent duration of the assignments
which were treated as �other duties as assigned.�
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
Complainant alleged that two individuals were detailed in violation of the
settlement agreement in issue. However, the agency indicated that those
individuals were not detailed through any official personnel actions.
Rather, the agency stated that the individuals were assigned for the
special projects which were treated as �other duties as assigned.� The
agency also stated that since no employees were detailed, management was
not required to solicit volunteers, as required by the union contract.
On appeal, complainant does not dispute the agency's arguments. Based on
the foregoing, the Commission finds that the agency did not breach the
settlement agreement when it assigned the individuals for the projects,
described above. On appeal, complainant, raising the incidents occurring
prior to the settlement agreement, contends that management gives
preferential treatment, favoritism, and formal and informal schooling to
other employees, without considering employees' seniority. However, it is
noted that complainant fails to provide any specific incident concerning
the matters. Upon review, the Commission finds that complainant's claims
are beyond the scope of the settlement agreement.
Accordingly, the agency's decision finding no settlement breach 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
August 18, 2004
__________________
Date