01A05109_r
03-26-2001
Raul F. Rodriguez, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Raul F. Rodriguez v. Department of the Air Force
01A05109
March 26, 2001
.
Raul F. Rodriguez,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A05109
Agency No. 9V1M99349
DECISION
The Commission finds that the agency's final decision which dismissed
complainant's breach claim was proper pursuant to 29 C.F.R. � 1614.504(a).
The record shows that on October 20, 1999, complainant and the agency
reached a Negotiated Settlement Agreement. Complainant claimed breach
of provision 3b of the Negotiated Settlement Agreement which provided,
inter alia, that:
�Management will provide a detailed job description, with the input of
the Complainant, to include all the duties the Complainant was performing
during the approximately February to August 1999 time period, and prepare
an SF52 Detailing the Complainant to an unestablished position, and
submit both documents to the Civilian Personnel Classification Office.
The package will be reviewed and classified by an appropriate classifier
rendering a decision. If the audit reveals a higher grade is warranted,
the Complainant will receive the temporary promotion with the resulting
pay and benefits, along with the credit for the skills code of the
position. If the audit reveals a higher grade is not warranted, the
Complainant will receive skills code credit for the time he supervised
the Avionics Mechanics�.
By letter dated May 9, 2000 to the Chief EEO Counselor, complainant wrote:
�I am concerned to learn that the Agency will not meet the promise written
in paragraph 3(b.) of the Negotiated Settlement Agreement. I had been
waiting patiently for almost 8 months, waiting for some reply on the
issues identified in paragraph 3(b). On 3 May 00, I had the opportunity
to ask [an agency official] about this agreement. [The agency official]
stated that he had submitted the paperwork to Classification some time
back and that as far as he was concerned that �it was not going to [pan]
out.� I interpret this to mean that the Agency is refusing to follow
through with the Agreement signed on 10 Oct 99".
In a final decision dated June 16, 2000, the agency determined that it
complied with provision 3b of the settlement agreement by submitting
an SF52 form to the Civil Personnel Classification Office. The agency
determined that after the Civil Personnel Classification Office reviewed
the forms, the Classification Office decided that complainant's
skills/duties did not meet the classification requirements for a
higher grade. The agency determined that there was no violation
of provision 3b because complainant was not entitled to receive any
additional skills coding other than what is required for the Aircraft
Electrician supervisor position.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director 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). The complainant
may request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
Settlement agreements are contacts between the complainant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon 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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
The plain language of the Negotiated Settlement Agreement imposed upon
the agency an affirmative obligation to prepare a position description
detailing complainant's duties, with input from complainant, and submit
it to the Civilian Personnel Classification Office by a SF-52. A review
of the record reflects that the agency complied with the terms of the
settlement agreement, and that complainant failed to show that these
terms were breached. The Commission notes that by memorandum dated June
1, 2000, an agency official indicated that, pursuant to the settlement
agreement, Standard Form 52 was completed; that it was submitted to the
Classification Office with a list of duties that complainant stated
he had performed; and that when the Classification Office completed
its study, it determined that it would be inappropriate to classify
complainant's position at a higher grade. Based on a careful review of
the record, we find that the complainant failed to prove his allegations
of non-compliance of provision 3b. Accordingly, the agency's final
decision finding no breach of the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 26, 2001
__________________
Date
______________________________
Date