0120073019
09-26-2007
William D. Lewis, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
William D. Lewis,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120073019
Agency No. 9X1M07008T
DECISION
Complainant filed a timely appeal with this Commission regarding the terms of the terms of the March 14, 2007 settlement agreement into which the parties entered.
The March 14, 2007 settlement agreement provided, in pertinent part, that:
2 (a) Within 14 days of signing this agreement, the Complainant will provide to [a named Colonel], 88 MDG/SGA, an OF 612 listing the duties and responsibilities in addition to those in the Complainant's current CORE document.1
(b) Within 21 days of receipt of the Complainant's verified OF 612, [Colonel] will provide a new proposed CORE document to the 88 MSS/DPCYA.2
(c) Within 30 days of receipt of the new CORE document, a position classification specialist, 88 MSS/DPCYA, will commence a classification review of the Complainant's position. If the position classification results in a higher grade, the Complainant will be promoted the pay period following the date the position classification specialist signs off on the new CORE document.3
The record reflects that following a position classification of complainant's position on May 16, 2007, the assigned position classification specialist determined that an upgrade was not warranted.
By letter dated June 19, 2007, addressed to the Commission, complainant claimed that he met with the Colonel, his supervisor and representative concerning a promotion. Complainant further stated "they took my credentials, qualifications and rather than promote me as they said they would do, they added these to my job description and refused to consider me for promotion from my present position Materials Handler (6907), none of these things were on my original Core Document." Furthermore, complainant stated "I feel that I am mal-assigned in my job and that I am more qualified for a promotion."
On appeal, the agency contends that complainant's appeal is premature and requests that complainant's appeal be dismissed. Specifically, the agency argues that complainant did not notify the EEO Director in writing of such breach claims. The agency states no final decision or determination has been issued by the agency from which complainant may appeal.
The agency nevertheless argues that it did not breach of provisions 2(a) - 2(c) of the March 14, 2007 settlement agreement. Specifically, the agency states that it was complainant's responsibility to submit any additional duties he felt he was performing through the OF 612 so it could be added to his current CORE document. The agency further states that based on the submission of complainant's OF 612, the agency was able to create an updated CORE documentation. The agency argues that not only did management comply with the terms of the agreement, management further had complainant and his representative involved at every step to ensure that complainant was in agreement with the documents as they were being drafted and considered. The agency states that on April 17, 2007, a position classification specialist (Specialist) conducted a desk and classification audit of complainant's position. The agency states that the findings of the audit revealed that complainant's duties were within the assigned classification standard but were not clearly defined in his CORE document. The agency states that management was notified of the audit findings and prepared a revised CORE document that addressed the specific duties and responsibilities of complainant's position.
The agency states that on May 15, 2007, complainant and his representative met with management to verify the accuracy of the new CORE document prior to any final classification actions and that they verified that it was accurate. The agency states that on May 16, 2007, the new CORE document was classified by the Specialist and the final classification of complainant's position was Material Handler, WG-6907-06. The agency states that according to the Specialist, it was determined that complainant's position, even with the new duties added to the CORE document, did not warrant an update. On May 22, 2007, management met with complainant to review the classified CORE document from the Specialist, and complainant was advised that the Specialist did not upgrade or change the series or his position. Specifically, the agency argues that management determined that the duties and experience claimed on complainant's OF 612 were consistent with the work performed by Materials Handlers at the WG-05 and WG-06 grade levels.
Further, the agency argues that complainant and his representative were "keenly aware that there was never any guarantee or promise that a promotion was forthcoming - it was merely a possibility dependant upon the classification process and process analysis." The agency argues given his dissatisfaction with the classification outcome, complainant has the right to file a classification appeal accordingly. In support of its assertions, the agency submitted copies of complainant's CORE document dated December 16, 1992 and complainant's OF 612 dated May 7, 2007.
As an initial matter, the Commission will construe the agency's arguments on appeal as a finding of no breach of provisions 2(a) - 2(c) of the subject settlement agreement, even though the agency alternatively argues that complainant did not first raise the breach claim in writing with the agency EEO Director.
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, we determine that the record in this case contains insufficient evidence for us to determine whether a breach of provisions 2(a) - 2(c) of the instant settlement agreement has occurred. Specifically, we note that agency's statements on appeal finding no breach is predicated upon the statements by management officials. However, the record contains no affidavit from management during the investigation of complainant's breach claims. Given this lack of evidence, we are unable to ascertain whether the agency complied with provisions 2(a) - 2(c) of the settlement agreement.
Accordingly, the agency's finding of no breach of provisions 2(a) - 2(c) 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 2(a) - 2(c) of the settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from the Colonel, complainant's supervisor and the Specialist, indicating whether complainant submitted the Colonel an OF 612 listing his duties and responsibilities in addition to his current CORE document (provision 2(a)); whether the Colonel provided a new proposed CORE document to the Specialist (provision 2(b)); and whether the Specialist conduct a classification review of complainant's position (provision 2(c)). Within thirty (30) calendar days of the date this decision becomes final, the agency shall issue a new decision concerning whether it breached provisions 2(a) - 2(c) of the March 14, 2007 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 26, 2007
__________________
Date
1 A "CORE document" is a document outlining the job responsibilities of an Air Force civilian employee, typically given to the employee by his supervisor.
2 OF 612 is an optional application for federal employment.
3 The settlement agreement also provides the agency would expunge the following documents: complainant's Work Schedule dated February 8, 2007, Civilian Progress Review Worksheet, AF 860b dated February 7, 2007, and the reference to the AF 860b, located in the AF 971, part b, within 30 days of the execution of the agreement. These provisions are not at issue in the instant appeal.
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0120073019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073019
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