Lee E. Lewis, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 26, 2001
01992220 (E.E.O.C. Feb. 26, 2001)

01992220

02-26-2001

Lee E. Lewis, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Lee E. Lewis v. Department of the Army

01992220

February 26, 2001

.

Lee E. Lewis,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01992220

Agency No. BHFR9806I0990

DECISION

Complainant alleged breach of a September 22, 1998 settlement agreement.

By decision dated March 22, 1999, the agency denied breach. On appeal,

complainant argues that the agency failed to provide the position

within thirty (30) days as required by the agreement, did not provide

complainant with a permanent position, and failed to make a �bona-fide�

offer because the position involved �hollow� duties interspersed between

different departments.

The settlement provided, in relevant part:

The Army agrees that [the] Logistics Division . . . will establish a

permanent position containing patient transport coordination duties. . . .

If the position is classified at a grade lower than the WG-7, in either

the Wage-Grade (WG) or General Schedule (GS), the employee's current

retained grade entitlement will remain in effect . . . . [M]anagement

officials will complete all necessary requirements for the establishment

of such a position and submit all necessary information to the CPAC

within 30 days of the effective date of this agreement.

Any settlement agreement knowingly and voluntarily agreed to by the

parties is binding on both parties. See 29 C.F.R. � 1614.504(a).

The Commission interprets the parties' intent by the contract's terms,

and not by some unexpressed intention. See Eggleston v. Department of

Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990).

The record reveals that the Chief of Logistics submitted a request for

personnel action for a permanent position for complainant on October 21,

1998. Complainant was offered a GS-5 position as Patient Transportation

Specialist on February 2, 1999.

Although complainant did not receive the position for several months,

he received the position within a reasonable time. Further, the job's

position description involves the duties stated in the settlement

agreement. If complainant wished to have more specific duties or

responsibilities, he should have negotiated to have these matters

expressly provided in the settlement agreement.

The record is less clear concerning the permanent nature of the position.

Complainant contends that he was placed in a position slated for

elimination in favor of private contractors. The record does not include

a notice of personnel action or other official document indicating whether

complainant's position was permanent. As a result, the Commission is

unable to determine whether complainant was given a permanent position

as provided for in the agreement.

CONCLUSION

Accordingly, to the extent complainant alleges breach of the agency's

time limit to provide his position, or of the position description's

duties, the agency's findings are AFFIRMED. The agency's findings

concerning complainant's claim that the agency failed to provide him

with a permanent position are VACATED, and the claim is REMANDED for a

supplemental investigation.

ORDER

The agency shall obtain a copy of the notice of personnel action or other

official document indicating whether complainant's position he was placed

in pursuant to the settlement agreement was permanent. The agency shall

determine whether it provided complainant with a permanent position

and shall issue a new decision regarding this claim of breach (i.e.,

the establishment of a permanent position issue) within 30 days of the

date this decision becomes final. The agency must provide the Compliance

Officer, as referenced herein, a copy of the new decision.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

February 26, 2001

__________________

Date