01982233
03-10-1999
George Gonzalez, Appellant, v. Daniel R. Glickman, Secretary, U.S. Department of Agriculture,) Agency.
George Gonzalez v. U.S. Department of Agriculture
01982233
March 10, 1999
George Gonzalez, )
Appellant, )
)
v. ) Appeal No. 01982233
) Agency No. 960205
Daniel R. Glickman, )
Secretary, )
U.S. Department of Agriculture,)
Agency. )
_______________________________)
DECISION
I. INTRODUCTION
Appellant filed the instant appeal from the agency's January 5, 1998
decision rejecting appellant's allegation that the agency had failed to
comply with the terms of a settlement agreement.
II. ISSUE
Whether the agency complied with the terms of the settlement agreement.
III. BACKGROUND
On January 30, 1996 appellant filed a formal complaint in which he alleged
that he had been discriminated against on the basis of national origin
(Mexican) and reprisal (prior EEO activity), when he was required to
work outside his job description. The issues raised in that complaint
were resolved by a settlement agreement (the agreement) entered into by
the appellant and the agency on April 2, 1996.
In the agreement, the agency undertook, in pertinent part, to do the
following:
a. Have a qualified position classification specialist ("classifier")
from the Office of Personnel Management (OPM) conduct a desk audit of
the Complainant's position of Instrument Worker Helper, WG-3359-5. The
Agency further agrees to accept the classifier's determination of the
Complaint's position. The desk audit and the classification analysis
will be completed no later than September 15, 1996.
e. Have the classifier from OPM conduct a desk audit of all Instrument
Worker Helper, WG-3359-5, positions and all Instrument worker, WG-3359-8,
positions within the Fresno area office. The classifier will then compare
the duties performed by the Complainant, at the time of this complaint,
with those of WG-3359-8, Instrument Workers on site during the same time
period to complete the desk audit analyses. The above-analysis will be
completed no later than September 15, 1996.
The appellant for his part undertook, in pertinent part, to withdraw his
complaint and to "[a]ccept the OPM classifier's determination concerning
the proper classification of his position."
As the agreement contemplated, an audit of the job functions of appellant
and his co-workers was conducted by the Office of Personnel Management
(OPM). OPM concluded that appellant's position should be reclassified
from Grade 5 to Grade 7; that his fellow Grade 5 employees should also
be reclassified to Grade 7; that Grade 8 employee should be reclassified
to Grade 9; and that the first level supervisor's position should be
reclassified from Grade 7 to Grade 8.
In a memorandum dated December 3, 1996, Appellant informed the agency
that he was dissatisfied with the results of the audit, believing that
his position should be reclassified to Grade 8 rather than Grade 7.
He asserted that the audit process was invalid because the OPM
representative chose to believe "false information" provided to him
concerning the duties of the Grade 8 level employees. Appellant stated
that he would not accept the results of the audit.
In its decision rejecting appellant's allegations of noncompliance the
agency found that the audit of appellant's position and the resulting
upgrading of that position had been conducted in compliance with terms
of the settlement agreement.
IV. ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. Appellant does not dispute that he knowingly and
voluntarily agreed to the instant agreement. Accordingly, he is obliged
to abide by the terms of the agreement, including the stipulation that
the question of the proper classification of appellant's job be resolved
by an OPM classifier.<1>
Appellant is dissatisfied with the decision of the OPM classifier and
seeks to challenge the validity of the decision by averring that it
was based on "false information" provided by certain agency employees.
After a careful review of the record, the Commission finds that appellant
has not substantiated this allegation. The record supports the conclusion
that the OPM classifier gathered relevant information from a variety
of sources and rendered his decision on the basis of that information.
The fact that the information provided by appellant was inconsistent with
that provided by other persons does not undercut the validity of the OPM
classifier's decision. Absent some showing of corruption, conflict of
interest or other serious misconduct on the part of the OPM classifier,
the Commission will not inquire into the correctness of the decision made.
See generally, Federal Arbitration Act, 9 U.S.C. � 10(a) et seq.
V. CONCLUSION
For the foregoing reasons, the Commission finds that the agency complied
with the provisions of the settlement agreement. Accordingly, we AFFIRM
the final agency decision.
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.
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. 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 (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.F.R.). 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:
March 10, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The parties' agreement to submit this issue to a binding resolution by
a third party is consistent with the policy favoring alternative dispute
resolution embodied in federal statutes (See e.g. Administrative Dispute
Resolution Act, 5 U.S.C. �� 571 et seq.) and the Commission's regulations
(See 29 C.F.R � 1603.108.)