01A12818_r
06-18-2002
Ramon Del Toro, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ramon Del Toro, Jr. v. Department of Defense (Defense Logistics Agency)
01A12818
June 18, 2002
.
Ramon Del Toro, Jr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A12818
Agency Nos. DT-96-094, DT-96-012
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated February 27, 2001, finding that it was in
compliance with the terms of the May 26, 1999 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
The Agency agrees that the previous suspension of [complainant] will
not be used as a �first offense� or �prior offense�, that the reckoning
period has expired.
The Agency agrees that the previous suspension of [complainant] will
not prevent, prohibit or in any manner inhibit his right to register
on the priority placement program (PPP) register. The Agency further
agrees that the previous suspension of [complainant] will not prevent,
or prohibit in any manner his right to placement at [agency] activities
from the PPP. This agreement is in full compliance with OPM and [agency]
rules regarding the placement program.
The Complainant received retained or saved pay as a result of his
placement at DDJC. His rights to retained or saved pay is not effected
by the previous suspension.
By letter to the agency dated March 6, 2000, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that he became aware that a derogatory SF-50, (referencing
disruptive behavior which resulted in his suspension), exists in his
Official Personnel File (OPF). Complainant claims that the SF-50 can
cause a problem in his being placed on the PPP and can play a role in
a hiring agency wanting to maintain his employment if they selected him
off the PPP. Complainant states that after selecting him from the PPP,
an agency could find the SF-50 in his OPF and then refuse to maintain
his employment.
In its February 27, 2001 decision, the agency concluded that it did not
breach the May 26, 1999 settlement agreement. The agency asserts that
there is nothing in the plain language of the settlement agreement that
calls for the removal of the suspension SF-50 from complainant's OPF.
The agency notes that provision (6) states that the action will not be
considered a �first offense� or a �prior offense� but does not mandate
the removal of the SF-50 from complainant's OPF. The agency states with
respect to provision (7), the presence of the SF-50 in complainant's
OPF does not compromise his right to register or be placed in the PPP.
The agency claims that complainant's argument that he would not be
hired by another agency activity because of the presence of the SF-50
is speculative.
On appeal, complainant claims that the presence of an SF-50 which shows he
was suspended for disruptive behavior can be a reason not to accept him
for hire at an agency. Complainant states that his agency currently is
going through reductions in force and downsizing and claims that he could
be affected because the SF-50 in his personnel file mentioning discipline
would mean that he cannot register for PPP placement. Complainant notes
that he received an e-mail dated March 2, 2000, from the EEO Office
which informed him that if and when he registers on the PPP, he needs
to show a copy of the settlement agreement to the personnel office.
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).
In the present case, we find that complainant has failed to show that
the agency breached the terms of the May 26, 1999 settlement agreement.
The agreement stated that complainant's previous suspension will not
prevent, prohibit or in any manner inhibit his right to register on the
PPP register and will not prevent, or prohibit in any manner his right
to placement at agency activities from the PPP. Despite complainant's
contention, we note that the settlement agreement does not require the
agency to remove the suspension SF-50 from complainant's personnel file.
Therefore, we find that complainant has failed to show that the agency
breached the settlement agreement.
The agency's decision that it did not breach the settlement agreement
is 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 18, 2002
__________________
Date