01a22130_r
07-30-2002
Pablo A. Rodriguez v. Department of the Army 01A22130 July 30, 2002 . Pablo A. Rodriguez, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Pablo A. Rodriguez v. Department of the Army
01A22130
July 30, 2002
.
Pablo A. Rodriguez,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A22130
Agency No. ACFRFO0201C0020
DECISION
The record indicates that on August 30, 2001, the parties entered into
a settlement agreement which provided, in pertinent part, that:
The Agency agrees:
Management will conduct a Desk Audit on the Complainant's position,
GS-0645-04, within sixty (60) days from the date the last signature is
affixed this document.
To rotate all civil service GS employees in the Phlebotomy Department
within the Phlebotomy Processing Area, Brooke Army Medical Center,
Fort Sam Houston, Texas.
On November 22, 2001, complainant alleged that the agency breached the
terms of the settlement agreement. On February 5, 2002, the agency
stated that it did not breach the settlement agreement. In the record,
the agency submitted the report of the desk audit, dated September 21,
2001, confirming complainant's position as a GS-04. With regard to the
alleged rotation, the agency indicated that the Phlebotomy Department's
personnel were rotated through the four major areas comprising the
Phlebotomy/Processing Section in which they were fully trained competent.
On appeal, complainant, disputing the accuracy of the desk audit,
contends that two people in the Phlebotomy Department were not rotated
within the Phlebotomy Processing Area due to their pending status to
complete training.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of 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 agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
The record indicates that the agency properly conducted a desk audit
on complainant's position in September 2001. Although complainant is
dissatisfied with the outcome of the desk audit, the Commission notes that
the settlement agreement did not guarantee his expected position upgrade.
Therefore, we find that the agency has complied with provision 3(a)
of the settlement agreement.
With regard to the alleged rotation at issue in provision 3(b) of the
settlement agreement, the agency stated that the Phlebotomy Department's
personnel were rotated within the Phlebotomy Processing Area. However,
there is insufficient evidence in the record to show that whether all
civil service GS employees in the Phlebotomy Department were completely
rotated within the Phlebotomy Processing Area. For instance, the record
shows that some employees' rotation were in �progress� or were �pending�
and others were �n/a.� It is not clear if all of these employees were
civil service GS employees or whether they have been completely rotated
in the Phlebotomy Department within the Phlebotomy Processing Area.
Therefore, the agency is Ordered, as stated below, to conduct a
supplemental investigation concerning the matter.
The agency's decision finding no breach of provision 3(a) of the
settlement agreement is AFFIRMED. The agency's decision finding no
breach of provision 3(b) is VACATED and the matter is REMANDED to the
agency's for further processing in accordance with the Order herein.
ORDER
The agency shall supplement its record to include evidence showing
whether it has complied with provision 3(b) of the August 30, 2001
settlement agreement, i.e., by rotating all civil service GS employees
in the Phlebotomy Department within the Phlebotomy Processing Area,
Brooke Army Medical Center, Fort Sam Houston, Texas. Based on the
foregoing information, the agency, within thirty (30) calendar days of
the date this decision becomes final, shall issue a decision regarding
whether the agency breached provision 3(b) of the settlement agreement.
A copy of the agency's decision must be sent to the Compliance Officer
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (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 (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
July 30, 2002
__________________
Date