John A. Tisdale, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 15, 2001
01996334_r (E.E.O.C. Jun. 15, 2001)

01996334_r

06-15-2001

John A. Tisdale, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


John A. Tisdale v. Department of the Navy

01996334

June 15, 2001

.

John A. Tisdale,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01996334

Agency No. 9467400004

DECISION

Complainant appealed the agency's decision finding that it did not breach

the settlement agreement between the parties. On August 14, 1995, the

parties resolved complainant's complaints by entering into a settlement

agreement, which provided, in pertinent part, that complainant would

receive the following:

5(b) Grant Complainant home leave in accordance with Complainant's

federal employment history as governed by 5 C.F.R. [�] 630.606.

5(c) Place the Complainant in the position of Social Services Assistant

for a period of two years. Complainant will then be eligible for

extensions of his appointment in accordance with the Agency's applied

criteria for tour extensions as set forth in Department of the Navy

Office of Civilian Personnel Management Instruction 301. Complainant

will continue to be eligible for extensions of his overseas appointment

regardless of the Agency job position he may encumber at the time,

provided that he satisfies the applicable extension requirements.

Complainant's tours shall be extended for the maximum period allowed by

Agency regulations.

5(d) Not retaliate against the Complainant in any way for the filing

of this discrimination complaint or negotiation and implementation of

this Agreement.

. . . . . .

7 Except for persons and agencies that have a legitimate need to know,

Parties agree that the terms of this Agreement shall be kept confidential.

There is no indication that complainant alleged breach prior to the

instant appeal. On appeal, complainant alleges that the agency breached

provisions 5(b), 5(c), 5(d), and 7 of the settlement agreement. On

appeal, the agency argues that it did not breach the settlement agreement.

The Commission deems the agency's argument on appeal to constitute an

agency decision finding no breach of the settlement agreement.

EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased. The agency shall resolve the matter and

respond to the complainant, in writing. If the agency has not responded

to the complainant, in writing, or if the complainant is not satisfied

with the agency's attempt to resolve the matter, the complainant may

appeal to the Commission for a determination as to whether the agency

has complied with the terms of the settlement agreement or final 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). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

Complainant argues that the agency breached provision 5(b) when the agency

did not grant �full home leave accumulated�. Complainant argues that

he was entitled to accumulate leave while he was something other than a

current Marine Corps employee because the settlement agreement contains

no limitations. The agency argues that the settlement agreement does

contain limitations, specifically, those limitations in 5 C.F.R. � 630.606

which the settlement agreement incorporates by stating �as governed by

5 C.F.R. [�] 630.606.� The agency supports its argument with a master

leave history, which contains the amount of home leave that has been

accrued by the complainant since August 20, 1995. The complainant has

not shown, and does not specifically articulate, how the agency is not in

compliance with 5 C.F.R. � 630.606. Therefore, we find that the agency

did not breach provision 5(b) of the settlement agreement.

Complainant argues that the agency breached provision 5(c) of the

settlement agreement stating that the agency, by letter dated June

9, 1999, informed him that his tour of duty would end on November 8,

1999. Complainant argues that ending his tour on that date would not

comply with the terms of the settlement agreement. Specifically, the

complainant argues that the agency breached the portion of provision

5(c) that states that his term �shall be extended for the maximum

period allowed by Agency regulations.� The agency argues that it

did not breach the settlement agreement because it complied with the

regulations which limits tour-length to five years. The agency argues

that the regulations require an employee to be eligible for an extension,

which by definition, in part, means that the employee must successfully

adapt to the overseas environment. The agency argues that the complainant

is not eligible because he did not successfully adapt to the overseas

environment when making abusive and threatening comments concerning his

supervisor.<1> The Commission finds that complainant has failed to show

that he satisfied the applicable extension requirements. Therefore,

we find that complainant has failed to show that the agency breached

provision 5(c) of the settlement agreement.

The complainant argues that the agency breached provision 5(d) of

the settlement agreement when retaliating against him on a number of

instances. Pursuant to 29 C.F.R � 1614.504(c), a claim that a subsequent

act of discrimination violates a settlement agreement shall be processed

as a separate EEO complaint, rather than as a breach of settlement under

29 C.F.R. � 1614.504. Therefore, we find that the agency did not breach

provision 5(d) of the settlement agreement. If complainant wishes to

pursue the claims of retaliation as separate claims of discrimination,

then he may contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105.

The Commission does not address whether such claims may be dismissed

pursuant to 29 C.F.R. � 1614.107 in this decision.

The complainant argues that the agency breached provision 7 of the

settlement agreement when the agency revealed the substance of the

Agreement to those �other than those with a need to know.� Complainant

supports this argument with a copy of the classified advertisement section

of the Japan Update for September 28 - October 4, 1995, which refers

to the Social Services Aid position and states that it was filled as a

result of an �EEO situation� and urges readers to question the �unfair

hiring practices�. The complainant also refers to an alleged anonymous

letter that was sent to his home regarding his use of the EEO process

to take unfair advantage of the system. The agency argues that there

is no evidence that the advertisement and letter are at all connected

to the agency's actions or are a result of the agency breaching the

confidentiality clause. There is insufficient evidence to show that

the agency breached provision 7 of the settlement agreement.

The agency's decision finding no breach of the settlement agreement

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

June 15, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Specifically, the agency contends that the complainant did not adapt

to the overseas environment when he stated: �[h]ell, if I had an M-16

I'd go down there and blow him away right now!� Complainant, after an

administrative hearing, was placed on probationary debarment for 180

days following the incident.