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.