01983510
06-02-1999
Jose E. Lugo-Acosta, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jose E. Lugo-Acosta v. Department of the Navy
01983510
June 2, 1999
Jose E. Lugo-Acosta, )
Appellant, )
)
v. ) Appeal No. 01983510
) Agency No. DON94-60921-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. �1614.402(a); EEOC Order No. 960, as amended.
On June 27, 1994, appellant filed a formal complaint, alleging that he was
the victim of unlawful employment discrimination on the basis of national
origin. Specifically, appellant alleged that he was not selected to serve
as team leader for the RCRA/HAZMAT Programs. Appellant's complaint was
accepted for investigation. However, on August 3, 1994, appellant and
the agency entered into a settlement agreement. The settlement agreement
contained, in pertinent part, the following provision:
6. It is understood that High grade promotion in the C28 organization
will be made based on the recommendation of a Merit Promotion Advisory
Board to the selecting official. An Advisory Board shall convene in
accordance with NAVSWCINST 12335.1A. The Selecting official shall not
be a member of the Promotion Advisory Board.
By letter to the agency dated February 9, 1998, appellant alleged breach
of the settlement agreement. First, appellant alleged that two employees
from the agency's CD28 organization were promoted to GS-13 positions
and that appellant was not certain whether "procedures established by
the agreement were satisfied." In support of this argument, appellant
enclosed a copy of an e-mail dated January 15, 1998, that announced the
selection of two employees for promotions in the CD28 organization.
Second, appellant alleged that NSWCDL is scheduled to implement a
Personnel Demonstration Project (hereinafter referred to as "the Demo")
that violates the terms of the settlement agreement. In support of
this argument, appellant submitted a copy of an e-mail regarding the
anticipated implementation of the Demo, on March 29, 1998.
By letter to the agency dated February 26, 1998, appellant clarified the
allegation of settlement breach relating to the Demo. Appellant alleged
that the Demo will violate the agreement by eliminating the potential
for progression that was addressed in the settlement agreement; and that
the Demo does not allow for the implementation of promotions addressed in
the settlement agreement. Specifically, appellant alleged that the Demo
"eliminates the potential for promotion, re-defines what a promotion is,
and gives complete control to the Supervisor in assigning the salary/pay
of an employee within the band."
On March 4, 1998, the agency issued a final decision finding no
breach of the settlement agreement. Regarding the promotion of two
employees in January 1998, the agency found that the record reflected
that in February 1996, after a Merit Promotion Advisory Board reviewed,
evaluated, and ranked six candidates, appellant was ranked fourth; and
that in January 1998, the CD28 Branch Head presented the number one and
two candidates, as recommended by the Merit Promotion Advisory Board.
The agency determined that the promotion process was in accordance with
the terms of the settlement agreement.
Regarding the Demo, the agency determined that its implementation would
not breach the settlement agreement.<1> The agency found that the
National Defense Authorization Act of 1995, authorizes the Secretary of
Defense to conduct a Personnel Demonstration Project at various designated
facilities, that included the facility where appellant is employed.
The agency further found that the Demo includes a broad classification
system; that under this system, all General Schedule (GS) occupations
are grouped into three career paths made up of occupations that follow
a similar career progression; and that this system consolidates the
fifteen GS grades into five or six "paybands," each representing a defined
level of work. The agency noted that within the Science and Engineering
payband, positions formerly classified as GS-12 and GS-13 are grouped
into a single payband (ND IV) with a maximum salary range equivalent
to GS-13, step 10. The agency indicated that this was the payband into
which appellant would be placed when the Demo is implemented. The agency
further indicated that advancement of an employee's salary within the
payband would not be construed as a promotion but would instead occur
"via the incentive pay system." Finally, the agency stated that unlike
the current system, advancement to the top end of a payband (i.e.,
the equivalent of a GS-13, step 10 salary for the ND IV career path)
will not be hampered by an external control on the number of GS-13 type
positions, but would instead be based on an assessment of each employee's
performance contributions relative to his salary range.
On appeal, appellant argues that the settlement agreement was entered
in good faith under a specific set of personnel management regulations.
Specifically, appellant argues that the settlement agreement, based on
personnel agreements in existence at the time the agreement went into
effect, established a procedure for progression in pay, which appellant
categorized as a "promotion." Appellant further argues that while the
settlement agreement removed "promotion" decisions from his immediate
supervisor, the implementation of the Demo returns that decision to the
Supervisor.
In response, the agency argues that the Demo provides for advancement
within the ND IV payband based on an individual's contributions to the
organization; that there is no competition within each payband; and that
promotions would solely occur for movement from one payband to another
payband (i.e., from the ND IV payband to the NV V payband). The agency
argues that appellant will be non-competitively moved within his payband
based on his contributions to the agency; and that appellant will be
considered in accordance with the terms of the settlement agreement for
promotions from one payband to another.
Regarding the promotion of two employees in January 1998, the agency
argues that in February 1996, a Merit Promotion Advisory Board review,
evaluated, and ranked six candidates; that appellant was ranked fourth
among the six candidates; and that it was not until January 1998,
that an agency Branch Head had the opportunity to recommend two high
grade promotions. The agency noted that the Branch Head presented
the number one and two ranked candidates, as recommended by the Merit
Promotion Advisory Board, and that these two candidates were subsequently
promoted. The agency argues that the process to select the candidates
in January 1998, was in accordance with the settlement agreement, and
that appellant's breach allegation, relating to the promotion of the
two candidates in January 1998, is frivolous.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
The Commission finds that the parties knowingly and voluntarily entered
into a settlement agreement on August 3, 1994, wherein the agency agreed
in provision 6 that high grade promotions in the C28 organization will be
based on the recommendation of an advisory board to a selecting official.
The record reflects that at the time of the parties' entry into the
settlement agreement, promotions were covered under the General Schedule
system. Appellant argues that the agency's transition from the General
Schedule system to the Demo "payband" system eliminates the potential
for promotion that was addressed in the settlement agreement.
A settlement agreement made in good faith and otherwise valid will not
be set aside simply because it appears that one of the parties has made
a poor bargain. However, if circumstances show equitable grounds for
relief, a settlement agreement will be set aside. Ingram v. General
Services Administration, EEOC Request No. 05880565 June 14, 1988).
In this case, the record shows that, as required by the settlement
agreement, appellant was considered for promotion pursuant to the Merit
Promotion Advisory Board plan outlined in provision 6. The record
further reveals that the transition from a General Schedule system
to the Demo "payband" system occurred in March 1998, approximately
three and one-half years after the settlement agreement was executed.
There is no evidence that either party knew at the time of the settlement
agreement in August 1994, that the facility where appellant is employed
would be restructured to implement the Demo system instead of the General
Schedule system. Accordingly, we find that the transition to the Demo
system was unforeseeable by both parties at the time the settlement
agreement was executed. There is no evidence in the record that the
agency entered into the settlement agreement in bad faith. Therefore,
the Commission finds that although the settlement agreement provided
for a promotional scheme when the General Schedule system was in effect
in 1994, the subsequent transition to a Demo "payband" system in March
1998, was not anticipated by the parties at the time of the settlement
agreement. See Henry v. USPS, EEOC Appeal No. 01933031 (August 11, 1993);
request to reconsider denied, EEOC Request No. 05931140 (April 7, 1994).
We find that the agency's determination that the agency had not breached
provision 6 of the settlement agreement as a result of the implementation
of the Demo was proper and is AFFIRMED.
Appellant also alleges that the agency breached the settlement agreement
by promoting two employees in January 1998. The Commission, however,
finds no evidence of record reflecting that the agency breached the
settlement agreement on this matter. Accordingly, the agency's decision
finding no breach of the settlement agreement, relating to the promotion
of two employees in January 1998, was also proper and is AFFIRMED.
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. 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).
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:
June 2, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
1 The record reflects that initial implementation of the Demo occurred on
March 29, 1998, approximately three weeks after the agency's final decision
of March 4, 1998.