John M. Rodriguez, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 7, 1999
01991454x (E.E.O.C. Dec. 7, 1999)

01991454x

12-07-1999

John M. Rodriguez, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


John M. Rodriguez, )

Complainant, )

)

v. ) Appeal No. 01991454

F. Whitten Peters, ) Agency No. AL900990222

Acting Secretary, )

Department of the Air Force, )

Agency. )

______________________________)

DECISION

On December 10, 1998, the complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated November 6,

1998, finding that it was in compliance with the terms of the January 16,

1996 settlement agreement (SA) into which the parties entered.<1> See

64 Fed. Reg. 37,644, 37,659-660 (1999) (to be codified at 29 C.F.R. ��

1614.402, 1614.504(b)); EEOC Order No. 960, as amended.

The SA provided, in pertinent part, that:

(2d) The agency agrees to allow Complainant a reasonable amount of

time to inquire of or meet with other organizations/managers regarding

placement opportunities. Complainant understands that his relief is

subject to approval of the supervisor based upon workload requirements.

By letter to the agency dated October 8, 1998, the complainant alleged

that the agency was not complying with paragraph (2d) of the SA,

and requested that the agency implement its terms. Specifically, the

complainant alleged that the agency added stipulations to the SA in an

effort to thwart any possible job relocation placement opportunities.

In its November 6, 1998 FAD, the agency concluded that the complainant's

supervisor's letter dated August 10, 1998, did not place any stipulations

on the SA or place an undue burden on the complainant. Therefore,

the agency found there was no breach of the SA.

64 Fed. Reg. 37,644, 37,660 (1999) (to be codified at 29 C.F.R. �

1614.504(a)) provides that any SA knowingly and voluntarily agreed

to by the parties, reached at any stage of the complaint process,

shall be binding on both parties. 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 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 SA, the Commission has generally relied on

the plain meaning rule. See 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).

In the instant case, in a letter dated August 4, 1998, the complainant

requested that his supervisor honor paragraph (2d) of the January 16, 1996

SA. Specifically, the letter stated that the complainant had originally

approached the supervisor for official time, pursuant to paragraph (2d),

and on or about July 27, 1998, the supervisor orally responded with

stipulations for which the complainant requested clarification in writing.

By Memorandum dated August 10, 1998, the complainant's supervisor

clarified his position stating, inter alia, that:

Since your release from duty is based upon workload requirements,

you are required to notify me prior to leaving the work area after

prescheduling an appointment to meet with other organizations/managers

regarding placement opportunities. If workload permits, I will release

you for a reasonable amount of time via an administrative slip which will

be used to document your arrival/departure times during your absence.

After you have completed your placement inquiry/meeting, you will report

back to me with the administrative slip.

By letter to the Commander dated October 8, 1998, the complainant through

his representative, stated that the supervisor (the individual against

whom the original complaint was filed) �added stipulations to� the SA.

Additionally, the complainant believes that the supervisor did this to

thwart any possible job relocation placement opportunities.

In the agency's FAD, it found that the supervisor's letter of August

10, 1998, did not add any stipulations to paragraph (2d) of the SA.

The agency stated that in the SA the complainant specifically agreed that

he understood that his relief was subject to approval by the supervisor

based upon workload. The agency stated that the use of an administrative

slip to document the reasonable time given the complainant for meetings

regarding placement opportunities did not add any stipulations to the

agreement.

We agree with the agency, in this respect. The agreement does not

specifically state that the complainant may have reasonable time without

accounting for it, it states that the agency will allow reasonable time

with the supervisor's approval based upon workload. We find nothing wrong

with the agency's use of the administrative slip as a document to account

for both approval and the use of the complainant's reasonable time.

Moreover, nothing in the SA prevents this method of compliance with

paragraph (2d).

Accordingly, we AFFIRM the agency's determination that it is in compliance

with the SA that the parties entered into on January 6, 1996.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

12-07-99 ____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________ 1 On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all Federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at WWW.EEOC.GOV.