01A24123_r
08-07-2003
Ysauro R. Munoz, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ysauro R. Munoz v. Department of the Navy
01A24123
August 7, 2003
.
Ysauro R. Munoz,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A24123
Agency Nos. 01-62758-003
02-62758-004
DECISION
The record reveals that on February 28, 2002, complainant and the
agency entered into a settlement agreement regarding complainant's
EEO complaints. The settlement provided, in pertinent part, that in
exchange for complainant voluntarily withdrawing his complaints, the
agency agreed as follows:
a. SRF Management agrees to provide training to enhance [complainant's]
career within 12 months from the date of this agreement.
b. SRF management agrees to provide [complainant] with a �Letter of
Regret� stating, �Management regrets calling the Bachelor's Officers
Quarters on 26 September 2001.�
The record contains a letter dated April 12, 2002, wherein complainant
informed the agency that it had not complied with the settlement
agreement. Complainant stated that on April 11, 2002, he learned that
his request for training had been denied. According to complainant,
the settlement was also breached when an agency official outside of SRF
management's Code 800 wrote the letter of regret.
By decision dated June 13, 2002, the agency determined that the
settlement agreement had not been breached. The agency stated with
regard to provision (a) that no breach has occurred given that no specific
training was identified in the settlement agreement and the one year time
period has not elapsed. With regard to the letter of regret, the agency
stated that the signature of the agency representative is sufficient
under the specific terms of the settlement. According to the agency,
the agency representative specifically informed complainant that he
would not support an apology from the SRF Administrative Officer.
On appeal, complainant contends that during settlement negotiations,
the agency representative assured him that the SRF Administrative
Officer would write the letter of regret. In a subsequent submission
dated May 1, 2003, complainant maintains that he has not received any
career enhancement training or a letter of regret from SRF management.
Complainant states that during the twelve month period covered by the
settlement agreement, he submitted two requests for vertical launch
systems training and both requests were denied.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently 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, 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, 381 (5th Cir. 1984).
We find that the record is insufficient to allow for a finding as to
whether the agency has complied with provisions (a) and (b) of the
settlement agreement. Provision (b) states that SRF management agrees
to provide complainant with a letter of regret stating that management
regrets calling the bachelor's officers quarters on September 26,
2001. The agency issued a letter to complainant dated March 19, 2002,
from the Chief, Labor/Employee Relations and Services Division, Human
Resources Office. The letter states that management regrets calling the
bachelor's officers quarters on September 26, 2001. It is not clear
from the record whether the official who signed the letter of regret
is part of SRF management. Therefore, this issue must be remanded for
investigation pursuant to the Order below.
With regard to provision (a), we observe that at the time that the agency
determined that it had not breached the agreement, only 3-4 months had
elapsed from the time that the settlement was executed. On May 1,
2003, more than a year after the settlement agreement was executed,
complainant claimed that he still had not received career enhancement
training and that both of his requests for training on the vertical launch
systems had been denied. The agency has failed to refute complainant's
contention that he has not received career enhancement training in the
twelve month period following execution of the settlement agreement.
We therefore find that this issue must be remanded for investigation
pursuant to the Order below.
Accordingly, the agency's decision finding that it did not breach the
settlement agreement is VACATED. This matter is hereby REMANDED to the
agency for further processing pursuant to the Order below.
ORDER
The agency shall conduct an investigation to determine whether complainant
received career enhancement training during the twelve month period
following the execution of the settlement agreement on February 28, 2002.
The agency shall document the nature of the training and on what date(s)
such training occurred. The agency shall also determine whether the
official who signed the letter of regret is a member of SRF management.
The agency shall provide documentation in the record to support its
decision. Within 30 days of the date this decision becomes final, the
agency shall issue a new decision determining whether it breached 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 (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
August 7, 2003
__________________
Date