0120064769_0120072729
09-21-2007
Timothy O. Holmes, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Timothy O. Holmes,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120064769 &
0120072729
Agency Nos. 95-62383-001 &
98-31935-018
DECISION
JURISDICTION
Complainant filed timely appeals with this Commission from agency
final decisions (FAD) finding that it was in compliance with the terms
of two settlement agreements. We will address the alleged breach of
both agreements in this decision in the interest of judicial economy.
The agency has asserted that it is in compliance with the terms of both
settlement agreements dated November 18, 1996 and April 26, 2001. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
Agency No. 95-62383-001 (0120064769)
As background, complainant filed a complaint dated October 1, 1994,
alleging discrimination based on race and disability when he was denied
the assignment of Yeoman Storekeeper in the Supply Department, among
other allegations. Complainant and the agency reached a settlement of the
complaint in August 1995, but complainant later filed an appeal alleging
a breach of the agreement. The parties reached another settlement
agreement on November 18, 1996. The 1996 settlement agreement provided,
in pertinent part, that:
(2) in exchange for the mutual consideration set forth herein,
the agency agrees:
(a) To employ Appellant in his former position effective at
a mutually agreeable date in December 1996 subject to successful
completion of the medical examination for new hires in his civil
service mariner career fields.
(c ) To document Appellant's Official Personnel Folder (OPF) to show
appellant's resignation from the Agency for personal reasons effective
July 22, 1994.
Complainant asserts that he requested a copy of his OPF in May 2006 from
the National Personnel Records Center and discovered that the agency did
not amend its records to reflect their agreement that he had resigned
from the agency. Complainant provided evidence that a Standard Form 50
reflected that he was discharged during his probationary period.
By letter to the agency dated July 17, 2006 complainant notified the
agency that he believed there was a breach of the agreement based on its
failure to document his Office Personnel Folder to reflect a resignation.
Complainant requested compensatory damages related to the agency's
breach because he alleged he had been unable to obtain employment as a
result of the agency's representation that he was discharged during his
probationary period. The agency responded to complainant's letter on
August 10, 2006 conceding that it "did not document your OPF to reflect
that you previously resigned from [the agency] for personal reasons
effective July 22, 1994"... "Nonetheless, the agency has now removed that
document from your OPF and placed a revised SF-50 reflecting resignation
for personal reasons." Letter to Timothy Holmes dated August 10, 2006.
The agency also advised complainant that it would revise other related
documents making erroneous references to a discharge. In additional
language, the agency specifically found that it breached that part of
the agreement requiring it to expunge any references to termination or
discharge of complainant from its employment. The agency denied that
complainant was entitled to any damages as a result of its admitted
breach of the agreement.
In relevant Commission regulations, 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.
29 C.F.R. � 1614.504(a). 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).
Here, there is no need to interpret the meaning of the parties' agreement
since the agency acknowledges that it breached the agreement by failing
to expunge its records of references to a discharge or termination.
Complainant has asked that his complaint be reinstated for processing
and that he be awarded damages, however, he provides no authority for
such a remedy, i.e., the award of compensatory damages in response to an
agency's violation of a settlement agreement. The Commission may order
specific performance or reinstate a complaint for further processing
from the point at which processing ceased. 29 C.F.R. � 1614.504(c).
Therefore, in keeping with complainant's request, the Commission will
require the agency to reinstate his complaint for further processing as
directed below.
Agency No. 98-31935-018 (0120072729)
Complainant filed a second complaint under agency No. 98-31935-018 on July
17, 1998 alleging reprisal for engaging in protected EEO activity when he
was not given a Special Achievement Award and when he received a 14 day
suspension relating to the sale of government property. The complaint was
investigated and referred to an EEOC Administrative Judge for a hearing.
(EEOC No. 120-99-6746X). By letter dated December 9, 1999, complainant
withdrew his EEO complaint from the administrative process and filed a
civil action in the United States District Court for the Central District
of California on February 22, 2000.1 A settlement of the civil action
was entered on April 26, 2001. Subsequently, complainant alleged that
the agency violated the terms of settlement agreement.
Because the parties' agreement was entered pursuant to the filing of a
civil action, the Commission does not have enforcement authority over it.
Barza v. United States Postal Service, EEOC Appeal No. 01A45995 (January
26, 2006). Complainant's recourse rests with the federal court which has
sole jurisdiction over the civil court settlement. Weil v. United States
Postal Service, EEOC Appeal No. 01A42347 (July 26, 2004). In addition,
the parties' agreement provides that the District Court would retain
jurisdiction in the event either party alleged a breach of the agreement.
Stipulation and Agreement of Compromise and Settlement and Order at
paragraph 17. For these reasons, the Commission dismisses the appeal
for lack of jurisdiction over the settlement agreement entered in the
civil action.
CONCLUSION
Based on the foregoing, the Commission reverses the agency's final
decision in Agency No. 95-62383-001 (0120064769), and we find a breach
of the agreement. We remand the case for further processing as directed
below. The Commission dismisses the appeal in Agency No. 98-31935-018
(0120072729) for want of jurisdiction over the agreement reached in
complainant's civil action.
ORDER (C0900)
The agency is ordered to take the following action within 45 days of
the date this decision becomes final:
The agency will reinstate the complaint filed under Agency
No. 95-62383-001 and commence processing the complaint from the point
at which processing ceased, with appropriate rights being given. At the
same time, the agency will also notify complainant, in writing, that it
has reinstated his complaint.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented. A copy of the agency's
letter informing complainant that it was reinstating his complaint shall
be included in the report.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
___9/21/07_______________
Date
1 The record reflects that the civil action was removed to the
U.S. District for the Northern District of California, San Francisco
Division on May 16, 2000 (CV-00-1896BZ).
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2
0120064769
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120064769
0120072729