0120082270
09-16-2008
Melissa Y. Thomas, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Melissa Y. Thomas,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082270
Agency No. ARUSAR07JUL02681
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 4, 2008, finding that it was in
compliance with the terms of the January 17, 2008 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:
(1) Complainant will be allowed to review her Military Personnel File
under the supervision of the HHC, 81st RRC, and her military medical files
under the supervision of the Command Surgeon's Office, 81st Regional
Readiness Command (RRC). (2) The agency will assign case management
responsibilities for Complainant's military medical processing to the
Command Surgeon's Office, 81st RRC in lieu of the TTHS [Individual
Readiness Division, Human Resources] section.
By letter to the agency dated February 14, 2008, 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 the above terms because
the case management of her military medical files was not accomplished
until January 28, 2008. Complainant claimed that on this date, she
learned that her medical records were in the control of a TTHS employee,
who allegedly was copying her records. Complainant stated that after her
records were transferred to the Command Surgeon's Office, she discovered
significant amounts of material were missing from her file, and it is
her belief that the TTHS employee who had her file on January 28, 2008,
is most likely responsible for the missing documents.
In its March 4, 2008 FAD and subsequent appeal response, the agency
concluded that as a preliminary matter, neither the term "immediately"
nor any other time limitation exists in the express terms of the
settlement agreement. The agency agreed only to "assign case management
responsibilities for complainant's military medical processing to the
Command Surgeon's Office, 81st RRC in lieu of the TTHS section. In the
absence of such a time-sensitive provision, none should be read into
the settlement agreement." The settlement agreement was entered into
on January 17, 2008, just 11 days (only 9 of which are business days)
prior to the alleged date of the TTHS employee's possession of the files.
The agency noted that there is nothing unreasonable about the time taken
to transfer the files. Also, a physician in the Command Surgeon's Office
confirmed that on or about February 12, 2008, their office took over case
management of complainant's military medical processing. Further, this
physician confirmed that complainant was not only given the opportunity
to review her military medical files, but also the opportunity to identify
any deficiencies and correct these files.
In response to complainant's claim that her medical files were incomplete
as a result of possible mishandling by the TTHS employee, the agency
asserted that even if this is true, it does not allege a breach of
any term of the settlement agreement. The agency noted that no term
of the settlement agreement promises anything regarding the accuracy
or completeness of any of the files or any particular result of the
processing of complainant's military medical files. Such is beyond the
scope of Title VII and would not be a proper issue in an EEO complaint.
The content of the military records is an issue related to complainant's
status as a member of the U.S. Army Reserves not her status a civilian
employee. Lastly, the agency maintained that it has undertaken a separate
inquiry into the allegations of misconduct raised by complainant in her
claims of noncompliance.
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).
The burden is on the party alleging breach to establish that a breach
has occurred. Based on the evidence in the record, the Commission finds
that complainant has not shown that the agency has breached the settlement
agreement at issue. Recognizing that complainant details her own account
in several letters to the agency, the Commission is not swayed in finding
that the agency has breached the settlement agreement in this matter.
Accordingly, the agency's final decision finding no settlement breach
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 16, 2008
__________________
Date
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0120082270
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082270