0120150004
02-19-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150004
Agency No. 13-00213-02027
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 15, 2014, finding that it was in compliance with the terms of the settlement 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer at the Agency's Security Department, Naval Air Station facility in Key West, Florida.
On May 29, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency agrees to rescind the March 13, 2013 proposal and April 29, 2013 decision to suspend the Complainant for ten (10) calendar days and remove them from his Official Personnel File and supervisory files, if maintained...The Agency will place Complainant in a Leave Without Pay status unless he elects to use Annual Leave for that period.
By letter to the Agency dated August 7, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to place Complainant in a Leave without Pay status, because an incorrect time and attendance code appeared in the Standard Labor Data Collection and Distribution Application (SLDCADA). The code shown was "KB", which was the code for a suspension. The Agency initiated measures to correct the code, which required a manual data entry. The Master Leave History V, dated September 11, 2014, reflects the current corrected status for the 56 hours at issue. Record, at page 40.
In its September 15, 2014 FAD, the Agency concluded that it complied with the agreement. The Agency stated that upon signing of the Settlement Agreement, the agency processed the action to place Complainant in a Leave without Pay status. It found that it did not breach the agreement.
This appeal followed.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 find that the terms of the agreement are clear, valid and binding.
In the instant case, the agreement required the Agency to place Complainant in a leave without Pay status. The Master Leave History V shows that the fifty-six hours at issue are listed as Leave without Pay.
Further, we find that the Agency took reasonable measures to cure any breach by continuing to work to input the correct the code.
The Commission has held that pursuant to 29 C.F.R. � 1614.504(b), an agency has 35 days from the receipt of notice of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35 day period following the breach notification, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
We find that to the extent that the wrong code entry may have constituted a breach, the Agency's actions of monitoring the implementation of the LWOP code after receiving notice cured any such breach.
For these reasons, we find that the Agency did not breach the agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 (S0610)
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 (Z0610)
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
February 19, 2015
__________________
Date
2
0120150004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150004