01a50216
04-22-2005
Raul M. Quintero, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
Raul M. Quintero v. Department of the Air Force
01A50216
April 22, 2005
.
Raul M. Quintero,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A50216 Agency No. 9V1M04080
DECISION
The record reveals that on January 12, 2004, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided that the agency promised in pertinent part
as follows:
a. To remove the 18 Nov 03 Sick Leave Abuse letter NLT 30 working days
after coordination of agreement.
b. To reassign the Complainant to a WG-3806-10, Mechanic position within
the MABA Branch in Building 3705 NLT 16 Jan 04.
To provide an ergonomic chair for Complainant within 30 working days.
By letter dated August 27, 2004, complainant informed the agency that it
had breached the settlement agreement. Complainant stated that the agency
had not complied with the aforementioned provision (b) of the settlement
agreement and had not acted in good faith. Complainant further stated
that on August 6, 2004, he was issued a Notice of Proposed Separation
and was placed on administrative leave. Complainant also stated that
the agency had charged him leave when he went to medical appointments.
By decision dated October 1, 2004, the agency determined that it had not
breached the settlement agreement. The agency stated that complainant
was physically moved to Building 3705 as a WG-3806-10 prior to January
16, 2004. The agency further determined that complainant failed to
raise his claim of noncompliance in a timely manner. The agency noted
that since the settlement agreement stated that complainant would be
reassigned no later than January 16, 2004, it is reasonable to believe
that complainant was aware of the alleged noncompliance long before
August 27, 2004, the date he submitted his letter alleging noncompliance.
Additionally, the agency stated that complainant may be accusing it
of not acting in good faith due to the fact that he recently received
a Notice of Proposed Separation. The agency advised complainant that
any new claims of discrimination should be raised with an EEO Counselor
within 45 days of the alleged discrimination. Thereafter, complainant
filed the instant appeal.
In response, the agency asserts that complainant was moved to another
position within the MABA Branch the day the settlement agreement was
executed. The agency maintains that complainant has failed to provide
any evidence to support his assertion that he was not reassigned.
The agency further maintains that the allegation of noncompliance is
untimely. With regard to the proposed separation of complainant, the
agency asserts that if it ripens into an actionable personnel action,
such action would constitute a distinct subsequent act that would be
processed as a separate complaint of discrimination.
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).
Complainant contends that the agency has breached the settlement agreement
by not implementing the provision that states he will be reassigned to
a WG-3806-10, Mechanic position within the MABA Branch in Building 3705
no later than January 16, 2004. The record reveals that complainant
did not notify the agency of its alleged noncompliance until August 27,
2004, seven months after the deadline for the agency to reassign him
pursuant to the settlement agreement. We find that complainant would have
known in January 2004 whether he had been reassigned and that therefore,
his contact of the EEO Office on August 27, 2004 was clearly not within
thirty days of when he knew of the alleged noncompliance. Accordingly,
we find that complainant failed to raise his allegation of noncompliance
in a timely manner, and the agency's decision finding that the claim of
breach was untimely is AFFIRMED.<1>
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
April 22, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In light of our finding that the claim of noncompliance was raised in
an untimely manner, we need not address the issue of whether the agency
breached the settlement agreement.