Cleveland Parker,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120082146
DECISION
Complainant filed a timely appeal with this Commission from the agency’s
response to his claim of breach dated March 7, 2008, which found that
it was in compliance with the terms of the November 19, 2007 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.
Prior to the November 19, 2007, settlement agreement, complainant
contacted an EEO counselor and alleged that he was discriminated against
based on his race (black) when on September 25, 2007, a co-worker
displayed a hangman’s noose in the workplace, and the agency then
failed to adequately respond. This claim is recounted in the settlement
agreement. It provides, in pertinent part, that:
Norfolk Naval Shipyard agrees to allow the co-worker and the complainant
to meet along with the undersigned management officials to discuss the
incident of 25 September 2007 as soon as possible after 2 January 2008,
but not later than 15 January 2008.
By letter to the agency dated February 11, 2008, complainant alleged
that the agency breached the settlement agreement, and requested that
it reinstate his EEO claim. The agreed to meeting did not occur.
In its March 7, 2008, response, the agency concluded that it did not
breach the settlement agreement. It explained that it was unable to meet
the January 15, 2008, deadline due to complainant’s and the co-worker’s
leave needs. It contended that it intended to comply, and a meeting was
scheduled for February 20, 2008, but complainant declined to attend.
The agency found that it complied with the spirit and intent of the
settlement agreement. It added that it did not object to complainant
reinstating his EEO claim.
On appeal, complainant argues that his leave needs were not the reason for
the meeting not occurring during the period specified in the settlement
agreement, and he was told the co-worker was leaving the agency for a
new position. He states that he advised the agency that he would not
attend the February 20, 2008, meeting. In opposition to the appeal,
the agency reiterates its March 7, 2008, response that it did not breach
the settlement agreement.
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.
Failure to perform in accordance with deadlines specified in a contract
does not necessary constitute a breach of contract. Time is not
ordinarily of the essence of the contract unless made so by express
stipulation or unless there is something connected with the purpose of
the contract and the circumstances surrounding it which makes it apparent
that the parties intended that the contract must be performed at or
within the time named. Am Jur. 2d Contracts § 471; Garzino v. Department
of the Army, EEOC Appeal No. 0120072847 (September 27, 2007).
In the instant case, we find time was of the essence because the purpose
of the settlement agreement was to quickly address complainant’s concerns
regarding the noose incident. While the agency states that it was unable
have the meeting during the agreed period due to complainant’s and the
co-worker’s leave needs, this is not supported by any documentation,
and complainant denies his leave needs were the reason. Accordingly,
we find that the agency breached the settlement agreement.
The FAD is reversed, and complainant’s claim regarding the noose incident
is remanded in accordance with the order below.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108.1 The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant’s request.
A copy of the agency’s letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0408)
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 (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 (R0408)
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 (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 11, 2008
__________________
Date
1 The agency issued a April 22, 2008, notice of right to file a complaint
regarding the noose incident, and previously promised to reinstate this
EEO claim.
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0120082146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120082146
