Debra Washington, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 27, 2007
0120063900 (E.E.O.C. Feb. 27, 2007)

0120063900

02-27-2007

Debra Washington, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Debra Washington,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01200639001

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated May 16, 2006, finding that it was

in compliance with the terms of the March 19, 2003 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.

In exchange for complainant's withdrawal of her formal complaint the

agency agreed to:

(4) Transfer [named individual] out of complainant's

supervisory chain.

By letter to the agency dated April 19, 2006, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that the agency violated provision (4) of the agreement when

[named individual] was placed in the position of Acting Chief of Police.

Complainant contends that in violation of the agreement between the

parties the agency's action placed [named individual] "directly in [her]

chain of command."

In its May 16, 2006 FAD, the agency concluded that it had not breached

provision (4) of the agreement as alleged by complainant. 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).

In the instant case, the agency indicates that it has fully complied

with the provision at issue herein. Specifically, the agency asserts

that complainant is not in the chain of command of [named individual]

because she is assigned to the mid-day shift, while [named individual]

works the day shift. The agency further indicates that [named individual]

was placed in the position of Acting Chief of Police temporarily,

during the month of April, 2006 and is no longer in that position.

In addition, the agency notes that even assuming that [named individual]

had been assigned to a position within complainant's chain of command;

the settlement agreement is silent as to the duration of time with respect

to provision (4). The Commission finds that the plain meaning of the

settlement agreement includes an understanding that the genuine future

needs of the agency, and the subsequent career decisions of complainant

or other agency employees including [named individual], can reasonably

be expected to impact both the structure of the agency as well as

complainant's chain of command. Therefore, we find it reasonable that

the agency's needs would have evolved to necessitate [named individual]

serving in an acting capacity on a temporary basis three years after

complainant entered into the settlement with the agency. Consequently,

the Commission concludes that the agency did not breach the March 19, 2003

settlement agreement. The record supports the agency's determination that

[named individual] was never placed in complainant's chain of command

in violation of provision (4).

CONCLUSION

After careful review of the record herein, the Commission finds that

the agency's determination that it complied with the specific terms of

the agreement between the parties was proper. The agency's decision is

hereby affirmed for the reasons set forth herein.

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 27, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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0120063900`

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063900`