01A12465_r
05-31-2001
Robert S. Trujillo, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Robert S. Trujillo v. Department of the Air Force
01A12465
May 31, 2001
.
Robert S. Trujillo,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12465
Agency No. HPOF00170
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on February 12, 2001, finding that it was in compliance
with the terms of the August 3, 2000 settlement agreement into which
the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
Immediately initiate a classification review of complainant's duty
position. Complainant, his supervisor and the reviewing classifier will
all sign the resulting position description.
(b) If the position is classified at the GS-13 level, the agency
will evaluate whether it may be filled competitively or may be filled
non-competitively. If it can be filled non-competitively, the complainant
will be selected for the position.
(c) If the position must be filled competitively, the position vacancy
will be announced Air Force-wide and a certificate of eligible, qualified
candidates will be prepared. Selection for the position will be made by
a panel method, the panel composed of members reflecting the diversity
of candidates on the certificate.
(d) If the position is not classified at the GS-13 level, Civil Personnel
Officer (DPC) will personally supervise any appeal of the classification
complainant decides to pursue. Denial of any appeals complainant may
elect to pursue shall not invalidate this agreement.
(e) Beginning with the date of this agreement any future selection
for specialist positions within the DPC directorate will be referred
to a selection panel whose membership reflects the diversity of the
certificate of candidates.
By letter to the agency dated January 22, 2001, complainant alleged
that the agency breached the settlement agreement, and requested that
the agency reinstate his complaint. Specifically, complainant alleged
that following his position audit in September 2000 he contacted the
Civil Personnel Officer (CPO) to discuss the results and was told that,
although his regular duties did not warrant an upgrade, the classifier
made an optional recommendation that complainant's position could
temporarily be upgraded to GS-235-13. According to the classifier,
the temporary upgrade was due to complainant's involvement with the
Secretary of the Air Force Acquisition Integrated Digital Environment
(IDE) project. Complainant contended that the CPO told him that he would
take the necessary actions to have his position temporarily upgraded.
In a November 29, 2000 meeting with another agency official, complainant
learned that the CPO had discussed the upgrade with him but that he was
not going to take any action until he inquired further into complainant's
work with the IDE project. Further, when complainant e-mailed the CPO, he
failed to respond. Therefore, complainant argued that the agreement was
breached when the CPO failed to promote him temporarily as recommended
by the classifier.
In its February 12, 2001 decision, the agency concluded that it had not
breached the agreement. While complainant alleged that the settlement
was breached due to the CPO's lack of action regarding his temporary
upgrade, the agency noted that the classifier found the position to be
properly classified at the GS-12 grade level. The agency acknowledged
that the CPO said he would look into the optional recommendation of
temporarily promoting complainant, but noted that he later decided not
to implement the grade increase. According to the CPO, the promotion
was not warranted because the IDE project only consumed five percent
of a team member's time and no one else performing the task had ever
been temporarily promoted. Consequently, the agency found that it was
in compliance with the 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.
The Commission has held that 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 further
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 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 (5th Cir. 1984).
In the instant case, complainant contends the settlement agreement was
breached when the agency failed to temporarily promote him to the GS-13
level. A review of the settlement agreement shows that the agency was
required to �initiate a classification review of complainant's current
duty position.� Both parties acknowledge that the review was performed.
Further, a copy of the review reveals that the �Final Determination�
was that the position was correctly classified at the GS-0235-12
title, series and grade. Therefore, provision (d) of the settlement
agreement became applicable, which provides for the supervision of an
appeal by complainant if the position is not classified at the GS-13
level. Complainant, however, contends that provision (b), addressing
the circumstance where the position is classified at the GS-13 level,
is pertinent in light of the classifier's �Optional Recommendation.� The
Commission disagrees. The �Optional Recommendation� suggests that �it
would be reasonable to consider temporarily promoting the incumbent for
one year...�. However, the classifier concluded that the position was
correctly classified at the GS-12 grade. Therefore, we do not find that
the agency was obligated, under the August 13, 2000 settlement agreement,
to promote complainant to the GS-13 level.
Accordingly, the agency's decision finding no breach was proper and is
hereby 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
May 31, 2001
__________________
Date