01A32479_r
02-25-2004
Willie Glover, Jr., Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Willie Glover, Jr. v. Department of the Navy
01A32479
February 25, 2004
.
Willie Glover, Jr.,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A32479
Agency No. 93-65886-015
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated February 5, 2003, regarding the agency's compliance
with the terms of the August 12, 1994 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
(a.) [The agency agrees] to recommend complainant to attend three (3)
courses over the next five (5) years, (i.e.) Contemporary Management
Issues and Practices, The Politics of National Security, and The
Washington Arena, sponsored by the Naval Aviation Executive Institute
(NAEI). It is understood between the parties that the above three
courses are sponsored, managed and controlled by the Naval Aviation
Executive Institute (NAEI) and NADEP only has authorization to recommend
the complainant's entrance and acceptance in the above-mentioned courses.
The final decision of entrance and acceptance rests with the Naval
Aviation Executive Institute (NAEI); and
(b.) [The agency agrees] to authorize a ninety (90) day temporary
rotational assignment deemed appropriate by management upon completion
of two years in Code 392 as a Supervisory Aerospace Engineer, GS-861-13.
(Note: If the 300 Department has become a part of the NAVAIR Competency
Aligned Organization and the NADEP does not have the authority to
permit the temporary rotational assignment, the NADEP will make
a strong recommendation to the pertinent officials . . . with the
requisite authority to approve the temporary rotational assignment.
The complainant acknowledges that NADEP's written recommendation will
fulfill its obligation since NADEP will not have ultimate authority
to permit the temporary rotational assignment.
By letter to the agency dated October 25, 2001, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to recommend the three courses
sponsored by the NAEI, which term the agency had five years to fulfill as
provided by the agreement (2.(a)). Complainant further alleged that he
completed two years of service to Code 392 in 1997, but the agency had
yet to authorize a 90-day detail for him as agreed in provision 2.(b.),
nor had the agency made the required recommendation for a rotational
assignment to NAVAIR. Complainant again notified the agency of breach
of the settlement agreement by letter dated January 30, 2003.
In its February 5, 2003 decision, the agency concluded that complainant's
breach claims were untimely, and that the agency did not deem any
available rotation assignment to be appropriate for complainant after
the time the settlement was executed. On appeal, the agency adds that
complainant received training in courses either the same as required by
the settlement agreement, or similar courses. The agency also claims
it is unable to ascertain whether now retired agency officials actually
recommended complainant for rotational assignments or training or not.
Since, the agency reasons, the agreement only required that complainant be
recommended, and not that he receive the described training and rotational
assignment, complainant could have been unsuccessfully recommended.
The agency adds that complainant's failure to pursue his breach claims
after his notice of October 2001 should estop him from now asserting
the agency failed to comply with the settlement agreement.
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 the instant case, we find that with respect to provision 2.(a.),
the agency was required to act within five years from the date of the
settlement agreement, or by August 1999. EEOC Regulation 29 C.F.R. �
1614.504(a) provides that a 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. Accordingly,
complainant had a duty to notify the agency of any alleged breach of
provision 2.(a.) within 30 days after August 1999. We find complainant's
notice to the agency of non-compliance in October 2001, was untimely.
Similarly, we find that complainant acknowledges that he completed
the requisite two years' tenure in Code 392 in 1997, and accordingly,
the agency was required to act to fulfill its obligation to recommend
complainant for an appropriate 90-day rotational assignment within
a reasonable time thereafter. We find complainant's notice of
non-compliance with provision 2.(b.) to the agency some four years later
to be untimely. Furthermore, we find that complainant has failed to
raise any timely breach claim that shows the agency breached the 1994
settlement agreement.
Accordingly, we AFFIRM the agency's determination finding no breach of
the 1994 settlement agreement.
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
February 25, 2004
__________________
Date