01994346_r
03-26-2001
Brenton A. Rose, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Brenton A. Rose v. U.S. Department of the Air Force
01994346
March 26, 2001
.
Brenton A. Rose,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01994346
Agency No. 5B0M-98-002
DECISION
On April 30, 1999, complainant filed an appeal with this Commission
claiming that the agency failed to comply with the terms of the April
20, 1998 settlement agreement into which the parties entered. In its
October 5, 1999 response to the appeal, the agency provided affidavits
(dated August 23, 1999) from complainant's supervisor, and other related
correspondence. Review of these documents indicates that complainant's
supervisor determined, in pertinent part, that complainant was not
entitled to the remedy he was requesting to address the agency's purported
breach of the settlement agreement. By facsimile to the Commission,
dated February 16, 2000, the agency indicated that complainant failed to
contact the EEO office regarding a breach of the settlement agreement,
but acknowledged the response provided by complainant's supervisor in
her affidavits.
The record before us confirms that complainant failed to contact the
agency's EEO office regarding his breach claim, and that the agency
issued neither a formal response nor decision regarding complainant's
breach claim. Nonetheless, because the evidence demonstrates that the
agency did ultimately receive, review, investigate, and, in essence,
deny the complainant's breach claim, as reflected in its response to the
appeal, we hereby exercise our discretion and accept the instant appeal
for consideration. 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:
1. The complainant will be sent to the following courses within one year:
A. Windows NT 4.0 class; and
B. DoD sponsored Node site coordinator course.
2. The complainant will be promoted to the position of Computer
Specialist, GS-11, effective 8 June 1997. All intervening actions (pay
adjustments, etc., will be accomplished and the employer will provide
back pay in accordance with the Back Pay Act, for the period 8 June 1997
to the present.)
By letter dated April 30, 1999, complainant alleged that the agency
breached the settlement agreement, and requested that the agency
specifically implement its terms. Specifically, complainant alleged
that the agency failed to provide the referenced �Node� computer course
despite his on-going requests, providing management officials with
information about course availability.<1> Complainant also requests a
retroactive promotion to a GS-11 Computer Specialist, and back pay from
the date when his position was up-graded to a GS-11.
As an additional remedy, complainant also requests: all courses for
Microsoft engineer certification; seven weeks of Firewall training;
Cisco Router configuration course; Windows NT 4.0 Security course; and,
inter-networking with TCP/IP course. In making this request, complainant
notes that since execution of the settlement agreement he had requested
these courses, but that his requests were not ultimately approved.
Additionally, complainant requests reassignment to the �Support Group
Commander� to work under an employee not having the same grade as he,
and for a monetary award.
In her August 23, 1999 affidavits, complainant's supervisor contends
complainant failed to respond to her request for information about
the Node course, and that she was unable to register him because she
was unable to locate an appropriate course. The supervisor further
asserts that complainant is not entitled under his job description, to
the additional courses he is requesting, and indicates that complainant
already received a promotion to a GS-11 in a manner consistent with the
terms of the settlement 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).
As a preliminary matter, we find that in his breach claim, complainant
identifies several computer courses which are not referenced in the
settlement agreement, and asks that he be scheduled to take these
courses as a remedy for the agency's claimed breach. Complainant also
requests a certain reassignment and a monetary award as part of this
requested remedy. We advise complainant that these matters fall outside
of the terms of the settlement agreement, and that under the applicable
regulations, a remedy for breach consists of either reinstatement of the
complaint or specific enforcement of the terms of the agreement. See 29
C.F.R. � 1614.504(b). Based on our reading of complainant's breach claim,
we find that he is requesting specific enforcement of the agreement.<2>
In support of his appeal, complainant submits copies of two e-mails from
him, addressed to an agency manager, dated December 1998 and April 1999,
detailing complainant's dissatisfactions with his working conditions.
These e-mails reflect that complainant identifies himself as a GS-11
computer specialist. Therefore, we find that complainant indeed received
the promotion at issue. Furthermore, review of these e-mail complaints
are devoid of any reference to a problem regarding the implementation
of this promotion, including the agency's failure to award back pay.
We note, moreover, that the supervisor's sworn affidavit indicates that
the agency provided the promotion as specified in the settlement. Thus,
based on our review of these two e-mail communications, as well as the
supervisor's sworn affidavit, we find no breach of this term of the
settlement agreement.
However, after careful review, we have determined that the agency breached
the settlement agreement when it failed to provide complainant the �Node�
training referenced in provision 1. Complainant's supervisor, in her
affidavits and other correspondence, claims that complainant failed
to cooperate in identifying a Node course, and that she was unable to
otherwise identify a suitable course. However, we find that neither of
these reasons is sufficient to justify non-compliance.
First, review of the evidence reveals that complainant actively provided
information about computer training courses to his supervisors, including
Node training, but that no action was taken on this information.
Second, in her affidavit, it appears that complainant's supervisor is
referring to one instance when she requested that complainant provide
course information, but that complainant responded that he no longer
had the information because his request for the training had previously
been denied. Third, we find that the settlement agreement does not
require complainant to identify suitable computer training courses.
Instead, the settlement agreement states only that the agency is to
provide the specified training, and it would therefore be incumbent on
the agency to both identify suitable courses and to schedule complainant
for the training. Therefore, we find that complainant's provision
of course information was merely gratuitous and did not relieve the
agency of its contractual obligation. Moreover, even if she could not
locate a specific course previously identified by complainant, we are
not persuaded that complainant's supervisor was unable to identify any
suitable training to satisfy the terms of the settlement agreement.
Additionally, we note that complainant's request for a remedy includes
a �Windows NT 4.0 Security course.� We are assuming that this is the
same as the �Windows NT 4.0 class� referenced in provision 1 above.
Consequently, to the extent that the agency failed to provide complainant
a �Windows NT 4.0 class�, we find that the agency also breached the
settlement agreement by not providing this training as well.
Accordingly, we find that the agency failed to comply with the settlement
agreement when it did not schedule complainant for either or both of the
computer training courses referenced in provision 1 above. The agency's
finding of no settlement breach is REVERSED. This matter is REMANDED
to the agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days from the date that this decision becomes
final, the agency shall schedule complainant for a �Windows NT 4.0 class�
and a �DoD sponsored Node site coordinator course,� as reflected in the
settlement agreement, if it has not already done so. As confirmation of
this action, the agency must notify complainant, in writing, regarding
the dates of these courses, and any other pertinent information, to
demonstrate that complainant is formally registered for these courses.
A copy of this letter, as well as pertinent registration documentation,
must be submitted to the Compliance Officer as referenced herein.
If complainant previously completed either or both of these courses, the
agency must notify complainant in writing regarding this determination,
and must provide documentary evidence to support this determination.
The agency must submit a copy of this correspondence to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
March 26, 2001
__________________
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
______________________________
1The settlement agreement also requires the agency to provide complainant
with additional training, presented through the agency's �Grissom Server�
one hour per day until completed. It does not appear that complainant
is claiming that the agency breached the agreement regarding provision
of the computer training through the �Grissom Server,� but instead by
failing to provide those courses referenced above.
2We note that it also appears that complainant may be claiming that
the agency has engaged in acts of additional discrimination against
him since executing the settlement agreement. We advise complainant to
contact an EEO Counselor if he wishes to pursue these matters.