Catherine M. Jones, Complainant,v.Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 10, 2005
01a54202 (E.E.O.C. Nov. 10, 2005)

01a54202

11-10-2005

Catherine M. Jones, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.


Catherine M. Jones v. Department of the Air Force

01A54202

November 10, 2005

.

Catherine M. Jones,

Complainant,

v.

Michael L. Dominguez,

Acting Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A54202

Agency No. 7K0J03011

DECISION

Complainant filed an appeal with this Commission from the April 12, 2005

agency decision finding that it was not in breach of paragraph 2(d) of the

February 5, 2004 settlement agreement into which the parties had entered.

Paragraph 2 of the settlement agreement provided, in relevant part,

as follows:

d. Remove witness statements from the Supervisor's Record of Employee

that were provided to support the counseling issued on 29 April 2003.

Initially, the Commission notes that this matter was previously before the

Commission in the appeal of Catherine M. Jones v. Department of the Air

Force, EEOC Appeal No. 01A44344 (March 10, 2005), req. for reconsideration

denied, EEOC Request No. 05A50793 (May 18, 2005). Complainant's previous

appeal was from an agency decision, dated May 11, 2004, in which the

agency found that it had not breached paragraph 2 (sections a, c, d,

and e) of the February 5, 2004 settlement agreement. The Commission

affirmed the agency's decision finding no breach of paragraphs 2(a),

2(c), and 2(e). However, the Commission vacated the agency's finding

that it was not in breach of paragraph 2(d), noting that because there

was no evidence in the record other than the agency's assertions of

compliance, the Commission could not determine whether the agency had

complied with paragraph 2(d). Accordingly, the Commission remanded the

matter for the agency to supplement the record with an affidavit from

an appropriate agency official who would indicate whether the witness

statements had been removed from the Supervisor's Record of Employee.

The Commission also ordered the agency to issue a new decision indicating

therein whether it was in compliance with paragraph 2(d). It is the

agency's new decision that gave rise to the instant appeal.

In its decision, the agency stated that it had removed all the witness

statements from the Supervisor's Record of Employee that were provided

to support the counseling issued on April 29, 2003. The agency provided

the March 28, 2005 affidavit of complainant's supervisor as proof of

its compliance 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 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).

Upon review, the Commission affirms the agency's finding of no breach

of paragraph 2(d). The record contains the affidavit of complainant's

supervisor (Person A).<1> Therein, complainant's supervisor states

that on February 9, 2004, he personally removed all witness statements

from the Supervisor's Record of Employee that were provided to support

the counseling issued on April 29, 2003. We find therefore that the

agency has complied with paragraph 2(d) of the settlement agreement.

The agency's finding of no breach of the settlement agreement 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

November 10, 2005

__________________

Date

1The affidavit indicates that as of August 17, 2004, Person A was

no longer supervising complainant.