01A43962_r
09-13-2004
Rubby R. Alcivar, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Rubby R. Alcivar v. Department of the Air Force
01A43962
September 13, 2004
.
Rubby R. Alcivar,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A43962
Agency Nos. 6X1S03017, 6X1S03027, 6X1S03037
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated April 23, 2004, finding that it was in
compliance with the terms of the July 9, 2003 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
(3)(c) [The] Agency agrees to place [complainant] into a GS-0540-05
Voucher Examiner, an encumbered position, located in 21 CPTS-FMFS. The
position is a Temporary Position that is expected to last through 31 Jul
05. [Complainant] will not have to interview for the position. The job
will be provided as priority placement for her. Civilian Personnel
requests that a Vocational Rehabilitation counselor/representative
conduct a physical site visit to determine whether the requirements of
the job are suitable for [complainant].
By letter dated April 1, 2004, complainant alleged that the agency
was in breach of the settlement agreement. Specifically, complainant
alleged that on March 25, 2004, she was verbally advised by the Civilian
Personnel specialists that her position, GS-0540-05 Voucher Examiner,
which was expected to last through July 31, 2005, was being eliminated.
In its April 23, 2004 decision, the agency concluded that the settlement
agreement was not breached. The agency noted that complainant's position
was one of twenty-two overhire positions identified for abolishment,
based on financial concerns. The agency stated that of the twenty-two
positions identified for abolishment, thirteen of them were encumbered.
The agency noted that three of these were the voucher examiner positions
in the Comptroller's Office, one of which was occupied by complainant.
Further, the agency stated that complainant had been in a non-duty status
for approximately one year and upon return to work she was offered one
of the available positions within her limitations. The agency stated
that based on the temporary nature of the position and the fact that
there was no guarantee that the position would last until July 31, 2005,
it did not breach the agreement.
On appeal, complainant claims that the settlement agreement provided
she would be in the temporary position for two years and then become a
permanent employee. Additionally, complainant states that �during the
time of the negotiation [she] did [not] have legal representation to
make sure this . . . writing was correct.�
The record contains a Notification of Personnel Action indicating that
complainant was placed into the Voucher Examiner position, GS-0540-05
effective August 11, 2003. According to the Notification of Personnel
Action, complainant's appointment was not to exceed July 31, 2005.
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 O 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 present case, we find that complainant has not shown that the
agency breached the July 9, 2003 settlement agreement. The agreement
provided that complainant would be placed into a GS-0540-05 Voucher
Examiner, an encumbered position, located in 21 CPTS-FMFS. The agreement
specified that the Voucher Examiner position is a temporary position
that is expected to last through July 31, 2005. The record reveals
that complainant was placed into the Voucher Examiner GS-0540-05 position
effective August 11, 2003. Complainant does not allege that the agency
failed to place her into the correct position. Rather, complainant
claims that the agency breached the agreement when it eliminated her
position pursuant to a RIF. While the settlement agreement stated that
the temporary position was expected to last through July 31, 2005, it
did not provide that complainant would remain in the Voucher Examiner
position for the entire two year period, as claimed by complainant.
The Commission has held that if a settlement agreement did not include
specific terms of the employment relationship which could have been
agreed upon, it would be improper to interpret the reasonable intentions
of the parties as binding the agency to the terms thereof forever.
See Parker v. Department of the Defense, EEOC Request No. 05910576
(August 30, 1991). Therefore, we do not find that the agency breached
the agreement when it eliminated complainant's position pursuant to an
unforseen subsequent RIF. Further, we find that the settlement agreement
did not guarantee complainant a permanent position after two years.
The Commission notes that when complainant pursued the EEO complaint
process that led to the settlement agreement, age was one of the bases of
alleged discrimination that she identified. The Older Workers' Benefit
Protection Act (OWBPA) amended the Age Discrimination in Employment Act
of 1967 (ADEA), effective October 16, 1990, and provides the minimum
requirements for waiver of ADEA claims. To meet the standards of the
OWBPA, a waiver is not considered knowing and voluntary unless, at a
minimum: it is clearly written from the viewpoint of the complainant; it
specifically refers to rights or claims under the ADEA; the complainant
does not waive rights or claims arising following execution of the
waiver; valuable consideration is given in exchange for the waiver; the
complainant is advised, in writing, to consult with an attorney prior
to executing the agreement and the complainant is given a "reasonable"
period of time in which to consider the agreement. 29 U.S.C. 626(f)(2);
see Swain v. Department of the Army, EEOC Request No. 05921079 (June 3,
1993) (settlement agreement upheld which was found to meet the waiver
provisions of the OWBPA).
After a review of the record, including the settlement agreement at issue,
the Commission finds that in the present case the minimum requirements
were met, as specified under the OWBPA, for a knowing and voluntary
waiver of complainant's ADEA claims. We note the agreement specifically
refers to claims under the ADEA. Additionally, complainant was advised
in writing to consult with an attorney prior to executing the agreement,
was informed that she may revoke the agreement within seven days of her
signing, and was given twenty-one days, a "reasonable" period of time,
in which to consider the agreement.
Accordingly, the agency's final decision is AFFIRMED.
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
September 13, 2004
__________________
Date