01A22559_r
04-30-2003
Richard P. Graves, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Richard P. Graves v. Department of Defense
01A22559
April 30, 2003
.
Richard P. Graves,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01A22559
Agency No. DLAB-02-001
DECISION
The record reveals that on September 6, 2000, complainant and the
agency entered into a settlement agreement regarding complainant's
informal EEO complaint. The settlement provided, in pertinent part,
that complainant would withdraw his informal EEO complaint and the
parties agreed as follows:
2. The Complainant or a representative of the Complainant will notify
the Complainant's immediate supervisor by telephone of any tardiness
or absence from work no later than 10:00 a.m. on the day the tardiness
or absence occurs. If the Complainant's immediate supervisor is not
available to receive the call, the Complainant will leave a voice mail
message. The Complainant may also leave a message for his supervisor
with another DESC-SB employee(s) who has been designated by his immediate
supervisor to receive such calls.
3. Management and the Complainant will work toward having an open line
of communication where each person feels that he or she may approach
the other to discuss work-related issues.
4. Management will continue working with Internal Review to modify, where
necessary, the job descriptions of DESC-SB employees. In particular,
Management will modify the Complainant's job description to accurately
reflect his current duties. At Management's request, the Complainant
will provide input to be used in updating his old position description
or creating a new position description.
6. The Complainant will provide Management with data to support his
contributions to the Fuels Automated System Bunkers Team for the period
1 January 1999 to 1 July 1999. Management will review this data and
will talk with [agency official] about granting the Complainant the same
16-hour time off award given to other employees for their contributions
during this period.
By letter dated April 17, 2001, complainant informed the agency that it
had breached the aforementioned provisions of the settlement agreement.
Complainant requested that his informal complaint be reinstated.
By agency decision dated November 21, 2001, the agency determined that
it had breached the second and fourth provisions of the settlement
agreement. The agency further determined that it had not breached the
third and sixth provisions of the agreement. The agency stated that
the complaint would be reinstated for further processing from the point
where processing ceased.
By letter dated December 11, 2001, the agency informed complainant that
if he wished to reinstate his complaint for further processing, he had
the right to file a formal EEO complaint within fifteen calendar days
of his receipt of the letter.
On March 21, 2002, complainant filed an appeal with the Commission
regarding the agency's decision of November 21, 2001. Complainant
contends that the agency also breached provisions three and six of
the settlement.
In response, the agency asserts that it sent complainant the letter
stating that his complaint was being reinstated and that he had fifteen
calendar days in which to file a formal complaint. The agency states
that complainant has not since filed a formal complaint with regard to
his original claims. The agency notes that complainant did file a formal
complaint on July 7, 2001, (Agency No. PA-01-003), wherein he raised
some of the same claims that had been resolved in the aforementioned
settlement agreement. The agency states that it accepted one claim
from that complaint for investigation and it dismissed seven claims.
The agency asserts that any appeal of that matter at this time is
premature.
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).
Upon review of the record, we find that this appeal should be dismissed in
light of the fact that the agency's decision to reinstate complainant's
informal EEO complaint is the remedy that complainant requested and to
which he is entitled based upon the breach of the settlement agreement.
We note that in his appeal, complainant submitted documentation concerning
the agency's dismissal of all but one claim in Agency No. PA-01-003.
Any appeal to the Commission of the dismissal of claims in that complaint
is at this point premature in light of the agency's acceptance of one
claim for investigation. Accordingly, the instant appeal is hereby
DISMISSED.
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 30, 2003
__________________
Date