01975889
10-09-1998
Rudy Renteria, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Rudy Renteria v. Department of the Army
01975889
October 9, 1998
Rudy Renteria, )
Appellant, )
)
v. ) Appeal No. 01975889
) Agency Nos. 9412E0340
Louis Caldera, ) 9406E0090
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated June 24, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.504(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The parties entered into a settlement agreement on January 3, 1995.
On April 4, 1997, the appellant notified the agency that the appellant
believed the agency was using the security clearance as a pretext for
not implementing section 3b of the agreement. The appellant requested
specific enforcement or reinstatement of his EEO complaints.
In section 3b of the agreement, the agency agreed:
That one year from the effective date of [the Appellant's] reassignment
into the position set forth in paragraph 4a [Security Assistant,
GS-0086-07, with developmental potential to GS-09], the Agency, upon
request by the [Appellant], will audit his position, and the Appellant's
grade will be increased to a GS-09 level upon certification by the Agency
that he is performing at the GS-09 level.
EEOC Regulation 29 C.F.R. �1614.504(c) provides that if the Commission
determines that an agency is not in compliance with the terms of a
settlement agreement, and the noncompliance is not attributable to acts
or conduct of the complainant, it may order such compliance, or it may
order that the complaint be reinstated for further processing from the
point processing ceased.
After a review of the record, including the appeal submissions of the
parties, the Commission finds that the agency's noncompliance, if any,
is attributable to acts, and/or the failure to act, of the appellant.
First, the Commission finds that under the terms of section 3b of the
agreement, the agency is required to audit the appellant's position upon
the appellant's request. However, there is no indication in the record
that the appellant has requested a position audit.
Second, according to an affidavit from the appellant's supervisor,
a security clearance is required for performance of the duties set
forth in section 3 of the job description for the target GS-09 Security
Specialist position. The supervisor also avers that since the appellant
can not perform these duties without a security clearance, he can not be
certified as performing the duties of the GS-09 position. This affidavit
testimony is consistent with section 3 of the job description which
requires the incumbent to perform numerous specified duties involving the
protection of classified and other sensitive information. For example,
according to the job description, the incumbent of the GS-9 position
serves as the Confidential, Secret, and Top Secret Control Officer,
the Reproduction Official of Classified Documents, and the Destruction
Official of Classified Documents.
It is uncontested that the appellant's security clearance will not
be finalized until the appellant submits proof that he has repaid his
debts or has made arrangements for their repayment. Because the record
evidence indicates that a significant portion of the GS-9 duties require a
security clearance, and because the appellant has not done what he needs
to do to qualify for the security clearance, the Commission finds that
any agency noncompliance with section 3b of the settlement agreement is
attributable to the appellant's actions or failure to act.
The appellant contends that the agency is using the security clearance
requirement as a pretext for not implementing section 3b of the
agreement. This is not an appeal from a complaint of discrimination
where pretext would be the issue. At issue in this appeal is whether
the agency has complied with the terms of the settlement agreement and
whether the noncompliance, if any, is attributable to acts or conduct of
the complainant. However, if the appellant has knowledge that the agency
permits one or more other employee(s) to perform the duties listed in
section 3 of the agreement without having a security clearance, and if
the appellant has reason to believe that the difference in treatment is
based on the appellant's race, color, religion, sex, national origin,
age, disability, or prior EEO activity, the appellant may contact an
EEO counselor to initiate a new complaint of discrimination.
The appellant also contends, for the first time on appeal, that the
agency has not complied with section 3c of the settlement agreement
which required the appellant and his supervisor to prepare a performance
development plan to prepare the appellant to perform the GS-9 duties. The
Commission finds that this allegation is not before the Commission at
this time because there is no indication in the record that the appellant
first notified the agency of the alleged noncompliance as required by
EEOC Regulation 29 C.F.R. �1614.504(a).
The appellant further contends that the settlement agreement should be
deemed invalid or void for three reasons, none of which have merit.
First, the appellant contends that he did not receive anything from the
agreement and therefore, the agreement lacks consideration. However,
the Commission finds that the appellant received adequate consideration,
specifically, reassignment to a GS-7 position with promotion potential to
the GS-9 level; the promise that the agency would schedule all necessary
training so that the appellant could obtain and maintain the position
at the GS-9 level; and the promise to increase the appellant's grade
level based on the results of a requested desk audit.
Second, the appellant contends that the agreement should be void as
a matter of public policy because it required him to waive his right
to sue. In the agreement the appellant agreed to settle two pending
complaints in exchange for the agency's promised actions.<1> The
Commission finds that the agreement is consistent with the public policy
which favors voluntary resolution of pending disputes. In so finding,
the Commission observes that the appellant did not waive his right to
file complaints about new acts of discrimination.
Third, the appellant contends that the agency entered into the
agreement in bad faith. However, there is no evidence in the record
to support this contention. The agency reassigned the appellant to a
position with promotion potential and sent him for formal training on
several occasions. The appellant claims that the agency's bad faith
is indicated by the fact that the agreement does not define the term
"certification." However, the use of the term "certification" in
connection with the requirement that the position be audited indicates
that the agency's "certification" must be consistent with the results
of the position audit and position classification standards. Moreover,
implicit in sections 3 b and 3c of the agreement is a requirement that the
agency assign the appellant GS-9 duties once he has completed necessary
training and obtained the security clearance.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's finding
that, as of the date of the agency's decision, it had not failed to
comply with section 3b of the January 3, 1995 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 9, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1The appellant's complaints alleged discrimination based on his national
origin.