01A21346_r
06-03-2002
David W. Lovato, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
David W. Lovato v. Department of the Air Force
01A21346
June 3, 2002
.
David W. Lovato,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A21346
Agency No. HPOF00033
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on December 4, 2001, finding that it was in compliance
with the terms of a June 1, 2000 settlement agreement. 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 the agency
would:
(a) Grant the complainant Priority Consideration for any GS-11 position
for which he qualifies within the Mission Support Squadron for a period
of 18 months.
By e-mail to the agency dated December 3, 2001, complainant alleged that
the agency breached the settlement agreement, and requested that his
complaint be reinstated for further processing. Specifically, complainant
alleged that the agency failed to grant him priority consideration.
Complainant claimed that during the past eighteen months he never
received notification or an interview for a GS-11 position for which he
was qualified.
In its December 4, 2001 decision, the agency concluded that no breach
occurred. The agency noted that a DPCFA Staffing Specialist researched
the matter, and reported that there were no GS-11 positions that
complainant qualified for during the preceding eighteen months.
On appeal, complainant contends that when he entered the settlement
agreement he was �left with the impression that . . . management wanted
to promote me to a GS-11 position during the next 18 months.� According
to complainant, however, the Mission Support Squadron (MSS) did not
offer him an interview for any GS-11 position. He argues that �[p]eople
have been promoted and new personnel have been hired within [MSS].�
In response, the agency reiterates its conclusion that during June 1,
2000 through December 1, 2001 there were no GS-11 vacancies for which
complainant qualified in the MSS. The agency has provided an affidavit
from the Staff Specialist that conducted the inquiry. Therein, the
Staff Specialist attests that �[a]fter a complete review of the SF 52s
reflecting vacancies filled in MSS from June 1, 2000 through December
1, 2001, I determined that complainant was not qualified for any of
those GS-11 vacancies.� Additionally, the agency notes that although
complainant did not qualify for a position with MSS, he was promoted to
a GS-11 position in the Commodities Directorate in August 2001.
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).
Complainant contends that the agency breached the settlement agreement
by not providing him with priority consideration for GS-11 positions
for which he was qualified. The record contains an affidavit from
a Staffing Specialist who conducted research regarding complainant's
charges. She attests that during the relevant time period, June 1, 2000
through December 1, 2001, complainant did not qualify for any of the GS-11
positions that were filled. Further, although complainant argues that
individuals have been hired and promoted during the relevant eighteen
month period, he has not provided any evidence indicating that those
positions included ones that would have been covered by the agreement.
Therefore, we find that the agency properly concluded that the settlement
agreement was not breached.
Accordingly, the agency's decision is hereby 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
June 3, 2002
__________________
Date