01A24424_r
08-19-2003
Robert W. Newsome, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Robert W. Newsome v. Department of the Navy
01A24424
August 19, 2003
.
Robert W. Newsome,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A24424
Agency No. 99-61331-005
Hearing No. 150-A0-8570X
DECISION
Complainant appealed to this Commission from the agency's July 30,
2002 final decision finding that it was in compliance with the terms of
the December 6, 2001 settlement agreement. In its final decision, the
agency also found that complainant's claim of breach was untimely raised.
The settlement agreement provided, in pertinent part, that the agency
agrees to:
(1) Provide complainant with training as all other employees and
[treat complainant] fairly and equitably with regards to the training.
It is understood by and between the parties that this does not guarantee
a promotion.
Restore sick leave in the amount of 80 hours and restore annual leave
in the amount of 80 hours.
By letter dated July 10, 2002, complainant alleged that the agency
breached provision (1) of the settlement agreement. Specifically,
complainant alleged that the agency refused to approve his training
request. According to complainant, the agency would not allow complainant
to take any course outside of his current field of employment, even though
his current field was a �dead end� with no opportunities for advancement.
In its July 30, 2002 final decision, the agency concluded that complainant
was provided the same training opportunities as other employees.
It explained that complainant's training requests were considered in
accordance with its �Employee Development Manual.� The record also
contains an investigation of complainant's breach claim, wherein the
agency asserted that on-the-clock training could only entail instruction
in complainant's current position. According to the agency, complainant
must take academic courses designed for advancement or a new field outside
of his work hours. The agency explained that it may reimburse complainant
for his tuition expenses to attend such off-the-clock academic programs.
If complainant believes that the agency has failed to comply with the
terms of a settlement agreement or decision, the complainant shall
notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. 29 C.F.R. � 1614.504(a). In the present case,
neither party has identified the date on which complainant knew or
should have known of the alleged noncompliance. The record contains
no copy of complainant's training request, nor of the agency's denial.
The Commission finds no evidence that complainant failed to timely raise
his claim of breach, and therefore rejects the agency's untimeliness
dismissal.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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 (Dec. 9, 1996). The parties' intent as
expressed in the contract, not some unexpressed intention, controls the
contract's construction. Eggleston v. Department of Veterans Affairs,
EEOC Request No. 05900795 (Aug. 23, 1990). In ascertaining the intent
of the parties with regard to the terms of a settlement agreement, the
Commission generally has relied on the plain meaning rule. See Hyon O
v. United States Postal Service, EEOC Request No. 05910787 (Dec. 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 Commission finds no breach of the December 6, 2001 settlement
agreement. It appears that complainant's training requests were denied
pursuant to agency policy. Complainant has presented no evidence of other
employees receiving more favorable treatment. Further, if complainant
wished to receive training in fields outside of his current employment,
and in contravention of agency policy, then complainant should have
negotiated to have such specifically written into the settlement
agreement.
CONCLUSION
Accordingly, the agency's final 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
August 19, 2003
__________________
Date