01A01269
03-29-2001
Ronald Jones, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Ronald Jones v. Department of the Army
01A01269
March 29, 2001
.
Ronald Jones,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A01269
Agency Nos. BHFR9809I1560; BHFR9807I1130; BHFR9809I1790; BHFR9806I0860;
BHFR9809I1820; BHFR9805I0750; BHFR9807I1190 & BHFR9802I0300
DECISION
Complainant, WG-8, timely appealed the agency decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled. The record indicates that the parties settled complainant's
eight complaints by entering into a settlement agreement on January 19,
1999, which provided, in pertinent part, that:
The agency and the complainant agree to:
a. Sick Leave reinstated for stress related visits at the Doctor's
office and travel to and from the doctor's office. If more hours of
sick leave were charged that day as sick leave, no reinstatement for
that will be allowed. A calendar of doctor's appointments for stress
related doctor visits will be provided by the complainant (substantiated
by doctor's notes) reflecting the days/hours [complainant] was not at
work but at the doctor(s)' office. This calendar will include hours
the doctor sent the complainant home because of illness.
The Base System Civilian Evaluation Reports (Appraisals), to include the
complainant's, will be worked with the Supervisory Equipment Specialist on
hand in Austin for initial, mid point reviews, and final accomplishment.
............
The complainant will be considered for a WG-9 position in AMSA Number
26 after the hiring freeze is lifted.
On or around June 11, 1999, complainant alleged that the agency breached
the terms of the settlement agreement. Specifically, complainant
indicated that the agency failed to reinstate sick leave under the
settlement agreement. Complainant also indicated that he received the
appraisal for the rating period from May 1, 1997 to April 30, 1998,
on May 13, 1999, and the tentative appraisal for the rating period from
May 1, 1998 to April 30, 1999, on May 14, 1999, which had not been worked
with the Supervisory Equipment Specialist. With regard to his promotion,
complainant stated that by a memorandum dated June 11, 1999, an identified
Administrative Officer indicated that the agency did not have a hiring
freeze at the relevant time period. Complainant also stated that the
Administrative Officer told a union chief that there was no hiring freeze
at the time of the settlement agreement; thus, the agency entered into the
settlement agreement in bad faith. Based on the foregoing, complainant
requested the reinstatement of his complaints for further processing.
On September 15, 1999, the agency stated that it complied with the
terms of the settlement agreement. With regard to paragraph 3a, the
agency noted that management credited 3 days of sick leave because the
doctor's notes indicated these visits were for stress. The agency also
noted that the remainder of the sick leave requests complainant submitted
were not credited because they were not related to stress. With regard
to paragraph 3b, the agency indicated that the rating period referenced
therein referred to the rating period from May 1999 to April 2000.
The agency stated that since the initial 1999 annual review was completed,
it complied with the settlement agreement. With regard to paragraph 3e,
the agency indicated that it did not enter into the settlement agreement
in bad faith. Specifically, the agency stated that according to a Command
Directive, no SF-52 request for personnel action could be processed until
the Activity submitted the SF-52 that brought it below 100% employment
capacity. The agency stated that since its records indicated that the
Activity was operating at 100% employment capacity at the settlement
agreement, no personnel actions could be processed according to the
Directive; thus, the term hiring freeze was appropriate. The agency,
however, did not indicate whether the hiring freeze was in effect at
the time of its decision.
On appeal, complainant, reiterating his arguments previously made,
contends that the agency failed to restore at least five dates of sick
leave for a total of 7� hours of sick leave, i.e., May 12, 1998 (1�
hours), May 18, 1998 (2 hours), June 8, 1998 (2 hours), September 9, 1998
(1 hour), and October 8, 1998 (1 hour). In support of his contentions,
complainant submits a copy of a doctor's statement, which was provided
to the agency on or around August 18, 1999, indicating that the Austin
Regional Clinic provided stress related medical service on the above
dates for those hours to complainant. Complainant also contends that the
appraisals referenced in paragraph 3b referred to all appraisal processes
that were pending at the time of the settlement agreement, i.e., for the
periods ending April 30, 1998, and April 30, 1999. Complainant notes that
he did not receive his annual appraisal for the period ending April 30,
1999, until June 18, 1999, and the Supervisor Equipment Specialist did
not meet with him from the date of the settlement agreement until June
18, 1999.
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.
Upon review, the Commission finds that the agency failed to comply
with the terms of the settlement agreement at issue. Paragraph 3a of
the settlement agreement, specifically, provided that complainant's
sick leave, which was used for stress related medical service, would be
reinstated. The record indicates that complainant used the disputed 7�
hours of sick leave for stress related medical service. The record also
indicates that complainant provided the agency with a medical statement
from the Austin Regional Clinic reflecting the foregoing information.
However, the agency did not reinstate these hours of sick leave.
Paragraph 3b provided that complainant's appraisals would be worked with
the Supervisory Equipment Specialist on hand in Austin for initial, mid
point reviews, and final accomplishment. The record indicates that after
the settlement agreement, on May 13, 1999, and June 18, 1999, he received
two appraisals for the periods ending April 30, 1998, and April 30, 1999,
respectively, but the Supervisor Equipment Specialist did not work �on
hand� with him. Although the agency argued that the settlement agreement
only covered complainant's appraisal for the period from May 1999 to
June 2000, it was not expressly provided in the settlement agreement.
Paragraph 3e provided that complainant would be considered for a WG-9
position in AMSA Number 26 after the hiring freeze was lifted. The record
indicates that there was no hiring freeze in effect at the agency at the
latest on June 11, 1999, but complainant was not considered for a WG-9
position thereafter. Based on the foregoing, the Commission finds that
the agency breached the settlement agreement.
Accordingly, the agency's decision not to reinstate complainant's
complaints is REVERSED. The agency is Ordered, as stated below, to
resume the processing of the complaints.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to resume the processing of complainant's
complaints from the point processing ceased in accordance with 29
C.F.R. � 1614.108. The agency, within thirty (30) calendar days of the
date this decision becomes final, shall notify the complainant that it
has resumed processing his complaints.
A copy of the agency's letter of processing to complainant must be sent
to the Compliance Officer as referenced below.
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 (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
March 29, 2001
__________________
Date