01A31802_r
03-17-2004
Marcus L. Jordan, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Marcus L. Jordan v. General Services Administration
01A31802
March 17, 2004
.
Marcus L. Jordan,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A31802
Agency No. 2001-R9-PBS-MLJ-14
DECISION
Complainant filed a timely appeal with this Commission after serving the
agency with his allegation that the agency failed to comply with the terms
of the August 8, 2002 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that the agency
would:
Allow the Complainant to be temporarily promoted to the next available
Deputy Property Manager Position � GS-1176-13 in the Los Angeles Service
Center or the PBS San Diego Office.
Allow the restoration of up to 80 hours of sick leave used during the
period between July 20, 2001 and August 15, 2001.
Provide a retroactive step increase to the GS-12-Step 6, effective the
first pay period for calendar year 2001, and a retroactive step increase
to the GS-12-7, effective the first pay period for calendar year 2002.
This action should be accomplished no later than November 1, 2002.
Provide for Diversity and Positive Communication Training for the managers
and employees of the Los Angeles Service Center within 6 months of the
signing of this agreement.
Support the Complainant's efforts in completing professional certification
requirements necessary to achieve the Real Property Administrator
Certification.
By letter to the agency dated November 22, 2002, complainant alleged
that the agency was in breach of 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, 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. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
Regarding item A, a Notice of Personnel Action Form SF-50 indicates that
complainant received a temporary promotion to GS-13, effective March 23,
2003. As to item B, complainant acknowledged to the agency's regional
EEO officer on February 4, 2003, that all 80 hours of sick leave had been
restored to him. With respect to item C, payroll documents establish
that complainant's pay adjustments to GS 12 steps 6 and 7 were carried
out on January 18, 2003, almost two months late. The Commission has
nevertheless held that failure to satisfy a time frame specified in a
settlement agreement does not prevent a finding of substantial compliance,
especially when all required actions were subsequently completed. See Day
v. United States Postal Service, EEOC Appeal No. 01A10210 (September 11,
2002) (citation omitted). Regarding item D, attendance records indicate
that two diversity training workshops were held in November 2002, for
all employees and managers at the facility where the dispute arose.
Finally, as to item E, the agency provided copies of complainant's
individual development plan, which specified real property administrator
certification as a training goal, indicating that complainant was given
authorization to take various training courses related to real property
administration during fiscal years 2003, 2004, and 2005.
CONCLUSION
The Commission finds that complainant has failed to show or claim in
any specific manner how the agency breached the settlement agreement.
Records submitted by the agency show that the agency has substantially
complied with the settlement agreement. Therefore, we conclude that
complainant has failed to show that the agency breached the August 8,
2002 settlement agreement.
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
March 17, 2004
__________________
Date