01a60287
05-04-2005
James Singleton, Complainant, v. Michael W. Wynne Secretary, Department of the Air Force (National Guard Bureau), Agency.
James Singleton v. Department of the Air Force (National Guard Bureau)
01A60287
05-04-05
.
James Singleton,
Complainant,
v.
Michael W. Wynne
Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.
Appeal No. 01A60287
Agency No. T-0322-OH-F-01-02-A0
DECISION
James Singleton (complainant) filed a timely appeal from the October
27, 2005, final decision of the Army/AF National Guard Bureau (agency)
concerning a complaint of unlawful employment discrimination in violation
of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
Complainant was employed in his civilian capacity as a technician at the
Springfield, Ohio, facility of the Ohio Air National Guard. In order
to maintain his civilian job, he was required to be a member of the
military reserve.<1> By February 2002, complainant had been passed
over for military promotion on two occasions, and under the military's
"up or out" policy, was discharged from the military as well as from his
civilian position. He sought EEO counseling in March 2002, and filed a
formal complainant on May 24, 2002, alleging a breach of the Settlement
Agreement (SA) signed July 2, 1997 ('Claim 2'), for failing to purge
complainant's Official Personnel File (OPF) of all documents related
to the events surrounding the SA. We directed the agency, inter alia,
to investigate complainant's claim of breach. EEOC Appeal No. 01A24013
(December 12, 2003), request to reconsid. den., EEOC Request No. 05A40359
(February 10, 2004).<2>
The SA came about after complainant was issued a proposed termination
letter in 1997. The parties agreed, inter alia, to change the removal
action to a 15-day suspension and that:
c. The proposal letter...dated 7 February 1997, the original decision
letter...dated 15 April 1997, and all documents which were used by the
Agency to support the removal action will be purged from [complainant's]
Official Personnel Folder (OPF)....
Exceptions to use of the SA included when it was necessary for
government investigations or claims of breach. In mid-summer 2005,
complainant examined his OPF and addressed the agency on August 11,
2005, arguing that the agency "failed to purge the required adverse
entries and failed to keep the alleged facts surrounding [complainant's]
termination confidential" using them to "deny [complainant's] promotion
and to support [complainant's] February 7, 2002 termination."
In its final decision, the agency found that it did not violate the
terms of the SA and that complainant's February 2002, termination was
due to loss of his membership in the military reserve.
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
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).
We agree with the agency that it did not violate the terms of the SA.
The record, containing the OPF, does not contain any documents or mention
of the events related to the 1997 termination activity. We note that
complainant did not provide further explication of these claims or point
to documents or events in support. Complainant had expressed concern
that the investigator was given a copy, but the agency asserted that
the identified copy had been maintained in the agency's EEO files and
not in his OPF.
For the above reasons, we find that the agency did not breach the SA.
CONCLUSION
Accordingly, the agency's decision was proper and 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
_____05-04-05_____________
Date
1The Commission has recognized the dual status of technicians in the
Military Reserve and has held that such individuals are considered both
uniformed military personnel, as well as civilian employees, with the
Commission having jurisdiction over them only when the claim at issue
arises from their capacity as civilian employees. See Brazill v. National
Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1998).
2In addition, complainant made several claims based on age (DOB 2/13/55)
and in reprisal. Our decision remanded issues 4 and 7, as well as the
breach claim, and affirmed dismissal of the remaining claims.