01a54912
12-19-2005
James P. Burns, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
James P. Burns v. Department of the Army
01A54912
December 19, 2005
.
James P. Burns,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54912
Agency No. ANBKFO9907J0260
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 20, 2005, finding that it was
in compliance with the terms of the May 22, 2000 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.
The settlement agreement provided, in pertinent part, that the agency
agreed to:
(1) request reinstatement of [complainant's] security clearance upon
receipt of memorandum from complainant;
(2) continue the current detailed duty assignment with the staff of
Deputy for Systems Acquisition (DSA) until the decision is made on the
security clearance;
(3) upon re-establishment of security clearance, complainant will be
assigned to a GS-09 Program Analyst position within Weapons and Technology
Management Office or another element of DSA;
(4) if the security clearance is not reinstated, assign complainant to
a GS-09 Program Analyst position, and his slot will be assigned with
DSA organization which has the ability to accept an employee without a
security clearance; and,
define and accomplish appropriate Individual Development Plan training
for upward mobility.
By letter to the agency dated June 20, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
contended that the agency failed to comply with any of the terms contained
in the settlement agreement.
In its June 20, 2005, FAD, the agency concluded that the appeal should
be dismissed as untimely. The agency also concluded that it was in full
compliance with the terms of 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). However, claims of breach
must be raised within 30 days of when complainant knew or should have
known of the alleged noncompliance. See 29 C.F.R. � 1614.504(a).
In the instant case, we concur with the agency that complainant's
breach allegation was untimely. Specifically, we find that provision 1
obligates the agency to undertake a certain action (request reinstatement
of security clearance) upon receipt of a memorandum from complainant.
Therefore, the agency's alleged failure to request the reinstatement
upon receipt of the memorandum, put complainant on notice that the agency
breached this provision. Under provision eight, as well as 29 C.F.R. �
1614.504(a), complainant was required to notify the agency of a breach
within 30 days of the alleged noncompliance, but failed to do so as
approximately five years elapsed from the date of the implementation of
the agreement to the date complainant submitted his breach claim to the
agency. Nor does complainant allege any specific triggering event which
occurred within 30 days of his submission of his breach claim. Therefore,
we find that complainant's breach claim is untimely. Furthermore, we
find that complainant offers no justification to warrant waiving the
time limit in this case. See 29 C.F.R. � 1614.604(c).
Accordingly, under the circumstances of this case, and for the reasons
set forth above, we AFFIRM the agency's determination that complainant's
breach allegation was untimely.
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
December 19, 2005
__________________
Date