01a43698
09-13-2004
Richard L. Alumbaugh, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Richard L. Alumbaugh v. Department of the Air Force
01A43698
September 13, 2004
.
Richard L. Alumbaugh,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A43698
Agency No. 8L1MO3108
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 23, 2004, finding that it was in
compliance with the terms of a January 7, 2004 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The January 7, 2004 settlement agreement provided, in pertinent part,
that:
3. a. NLT 14 Jan 2004 [a named agency Lieutenant] will initiate the
action to schedule an appointment for the complainant to undergo a
medical evaluation. In the event the agency physician determines that
the complainant is medically qualified for re-employment with the agency,
[the Lieutenant] will notify the agency staffing office [a named Chief
of Affirmative Employment] that the complainant was determined to be
medically qualified for re-employment; and
3. b. Upon such notification, the agency will re-employ the complainant
in the next full performance GS-4 position that becomes vacant thereafter
at Hill Air Force Base, for which he meets the minimum qualification
requirements. It is understood that the agency's obligation to place
the complainant under this agreement will be applicable for a period of
two years from the effective date of this agreement. It is understood
that if the complainant is placed under this agreement, his salary will
be set in accordance with local pay setting guidelines (last grade/step
held GS-04 Step 8).
By letter to the agency dated March 15, 2004, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that a medical evaluation was not arranged as soon as possible
following the execution of the January 7, 2004 settlement agreement.
Complainant stated that pursuant to the agreement the �medical evaluation
should be done now; not at a time when next GS-04 position opens up and
a evaluation completed �thereafter' the opening date of the position.�
Complainant further stated that it was his understanding that all
eligible applications submitted for a position could be considered from
the opening date through the closing date of the application period,
and that his application did not receive this type of consideration.
In its March 23, 2004 final decision, the agency found no breach.
The agency determined that the Chief stated that the Lieutenant
identified in the settlement agreement initiated the action for a
medical evaluation in a timely manner. The agency determined that the
Chief stated that on January 24, 2004, an agency physician signed a
memorandum stating that �it was medically reasonable to consider that
[Complainant's] medical condition has been adequately treated and has
stabilized to the point that he can be considered for re-qualification for
work in his former position.� The Chief stated that based on the agency
physician's assessment, an agency entity identified as �OO-ALC/DPCF�
included complainant's name on its Priority A list for re-employment in
the next full-performance GS-04 position to become vacant after receiving
the medical evaluation. The agency indicated that the Chief stated that
pursuant to the terms of provision 3.b. of the agreement, complainant
would not receive �priority consideration� for vacancies that occurred
prior to OO-ALC/DPCF's notification that he was determined to be medically
qualified for re-employment. The agency further stated that the Chief
stated that since complainant was registered for Priority A referral,
OO-ALC has not received any requests to fill any full-performance GS-04
positions.
On appeal, complainant, through his representative, contends that
the Lieutenant did not initiate the action for a medical evaluation
in a timely manner, and that the Lieutenant's action caused him to be
�bypassed for the position for which he applied.� Complainant contends
that the Chief's �interpretation of what is meant by the �next vacancy'
is not reasonable.� Complainant contends that the Chief's office was
aware prior to the close of a vacancy announcement that he was medically
qualified. Furthermore, complainant contends that the position he applied
for was still vacant after the Personnel Office received the notification,
in violation of provision 3.b. of the settlement agreement.
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 O 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 instant case, the Commission determines that the record in this
case contains insufficient evidence for us to determine whether a breach
of provisions 3.a. and 3.b. of the instant settlement agreement has
occurred. Specifically, we note that the agency's final decision finding
no breach is predicated upon statements by the Chief reflecting agency
compliance with the subject agreement. However, the record contains
no affidavit from the Chief indicating that the agency obligations
identified in the settlement agreement have been met. Given this lack
of evidence, we are unable to ascertain whether the agency complied with
the settlement agreement. Accordingly, the agency's finding of no breach
of the settlement agreement is VACATED. This matter is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has complied with provisions 3.a. and 3.b. of the January 7, 2004
settlement agreement. The supplementation of the record shall include
any documentation, such as an affidavit from the Chief identified in
the settlement agreement, reflecting whether the agency has fulfilled
the obligations under the terms of the settlement agreement by having
the Lieutenant initiating the action to schedule an appointment for
complainant to undergo a medical evaluation no later than January 14,
2004 (provision 3.a.); and re-employing complainant in the next full
performance GS-4 position that becomes vacant at the Hill Air Force Base,
for which he meets the minimum qualification requirements upon such
notification (provision 3.b.). Within thirty (30) calendar days of the
date this decision becomes final, the agency shall issue a new decision
concerning whether it breached the March 23, 2004 settlement agreement.
A copy of the agency's new 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
September 13, 2004
__________________
Date