Janine L. Thomas, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 22, 2004
01a40198_r (E.E.O.C. Nov. 22, 2004)

01a40198_r

11-22-2004

Janine L. Thomas, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Janine L. Thomas v. Department of the Air Force

01A40198

November 22, 2004

.

Janine L. Thomas,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A40198

Agency No. WE1M01047

DECISION

Upon review, the Commission finds that the agency's decision not to

reinstate complainant's complaint of unlawful employment discrimination

that the parties had settled is proper. See 29 C.F.R. � 1614.504.

On June 28, 2001, the parties entered into a settlement agreement

resolving the complaint. The settlement agreement provided, in pertinent

part, that:

c. The agency agrees that during the months of September through April

while the Complainant is under the supervision of [Supervisor A] or

his successor in the organization the Complainant will be allowed to

perform work to accumulate three credit hours per week to be performed

during the hours of 7-5. The Complainant would be permitted to use

accumulated credit hours to depart on her religious Sabbath of Friday

afternoon provided suspenses up to that point have been completed.

[Supervisor A] or his successor in the organization will make a good

faith effort not to schedule any meeting or briefings requiring her

attendance during the Sabbath observances.

The agency agrees while the Complainant is under [Supervisor A's]

supervision or his successor in the organization to permit her to use

annual leave or accumulated credit hours for her religious holidays in

other than a national emergency. The Complainant will submit an SF-71

(Request for Leave) specifically identifying the name of the religious

day requested.

e. [Supervisor A] or his successor in the organization will remove the

portion of the counseling contained in the Complainant's AF Form 971

dated February 13, 2001, related to her leave within 30 days from the

date of signature on this agreement.

. . . .

All existing counselings on the Complainant's AF Form 971 will be removed

from the Form six months from the date of signature on this agreement.

Additionally, any potential discipline proposed based on the events in the

counseling will be held in abeyance until the end of the six-month period.

Both the counseling statements and potential disciplinary proposal will

be expunged from the agency's records if the Complainant successfully

completes the six month period without further conduct of the sort

reflected in the existing counselings.

. . . .

The complainant and the Agency agree that the facts and terms of the

agreement will be kept confidential, and will not be disclosed to persons

not having a need to know of its existence and terms.

On October 26 and 30, 2001, complainant alleged that the agency breached

the settlement agreement. On November 27, 2001, the agency issued its

finding of no settlement breach. Complainant appealed and in her appeal,

she raised new breach claims in addition to her previous claims. During

the pendency of the appeal, complainant filed a complaint (according to

the agency) on January 22, 2002, which encompassed the same incidents

raised in the breach claim.<1> In EEOC Appeal No. 01A21149 (August 8,

2003), the Commission found no settlement breach concerning complainant's

October 2001 claims. The Commission, however, found that the record

contained insufficient information in order to make a determination of

breach concerning complainant's claims on appeal and in her March 6,

2002 claims. Thomas, EEOC Appeal No. 01A21149. The Commission remanded

the claims of breach raised on appeal in EEOC Appeal No. 01A21149 and

remanded her March 6, 2002 claims of breach so that the agency could

investigate the new claims of breach and issue a new decision.

Subsequently, on September 30, 2003, the agency issued its decision

finding no settlement breach. The instant appeal is from the September

30, 2003 decision.

The Commission has held that settlement agreements are contracts between

the complainant and the agency and it is the intent of the parties

as expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984).

In the instant case, complainant alleged that the agency breached

provisions 1.e and 4 of the settlement agreement at issue. Specifically,

complainant indicated that the agency failed to remove counseling

references from her AF Form 971 and inserted the phrase �[t]his portion

removed per Negotiated Resolution Agreement 28 June 01� in place of

the redacted language. The record indicates that the agency removed

counseling references at issue, and Supervisor A, after complainant

brought the matter to the attention of management, removed the annotation

from complainant's file. Therefore, we find that the agency has now

substantially complied with provision 1.e of the settlement agreement.

The Commission finds that complainant has not shown breach of provision

4 of the settlement agreement.

Complainant also alleged that the agency breached provision 1.g of the

settlement agreement and that she received a 7-day suspension on February

7, 2002. The agency indicated that the discipline was held in abeyance

pursuant to the terms of the agreement, but when complainant failed to

meet her obligation not to engage in certain conduct for six months, it

issued the proposed suspension letter considering both the new incidents

and those held in abeyance that resulted in the 7-day suspension.

Upon review, the Commission finds that the agency did not breach

provision 1.g of the settlement agreement, and complainant's subsequent

7-day suspension is not within the scope thereof. The record indicates

that complainant properly filed her subsequent complaint concerning this

further alleged discriminatory incident.

Complainant alleged that the agency breached provisions 1.c and 1.d of

the settlement agreement. Specifically, complainant claimed that she

was denied the opportunity to work credit hours for the pay periods

of December 30, 2001 to January 12, 2002, and January 27, 2002 to

February 9, 2002, and that credit hours accumulated for January 28-29,

2002, and February 4, 2002, were not accounted for in her leave and

earning statement. The record contains complainant's supervisor's

affidavit stating that complainant submitted credit hour worksheets for

the periods December 30, 2001 through January 12, 2002, and January 27,

2002 to February 9, 2002, indicating that she would use the credit hours

for other than the Sabbath preparation and observance. The supervisor

did not approve such use of credit hours pursuant to the settlement

agreement. Provisions 1.c and 1.d only provide for the earning of credit

hours for use in Sabbath preparation and observance. The supervisor

also stated that on January 28 and 29, 2002, and February 4, 2002,

complainant worked 8 hours and did not accumulate any credit hours.

The supervisor indicated that complainant took 3 hours of accumulated

credit hours in Sabbath preparation and observance on February 1, 2002.

The supervisor noted that complainant took almost every Friday afternoon

off, whether or not she had credit hours. Based on the foregoing, the

Commission finds that the agency did not breach provisions 1.c or 1.d of

the settlement agreement. With regard to the denial of credit hours other

than for complainant's Sabbath observances provided under the settlement

agreement, the record indicates that complainant properly filed her

subsequent complaint concerning further alleged discriminatory incidents.

Accordingly, the agency's decision finding 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 22, 2004

__________________

Date

1The record indicates that the agency

investigated this subsequent complaint, Agency No. WE1M02008, and

issued its final decision on August 13, 2003, finding no discrimination.

Complainant appealed this decision and the matter is pending before the

Commission at this time under EEOC Appeal No. 01A35303.