0120064129
11-22-2006
Alfred R. Ackley, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Alfred R. Ackley,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200641291
Agency No. 8L1M06009
DECISION
Complainant filed a timely appeal with the Commission from a final
decision by the agency dated June 7, 2006, finding that it was in
compliance with a December 22, 2005 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The December 22, 2005 settlement agreement provided, in pertinent part,
that:
2(a) NLT 15 January 2006, reassign the complainant from a WS-8255-10
Pneudraulic System Mechanic Supervisor within the 309 CMXG/MXCJ
Organization to a WS-8840-10 Aircraft Mechanic Repairer Supervisor
position in the 309 CMXG/MXCD Organization.
2(b) NLT 15 January 2006, the complainant will be provided 50 hours
of compensatory time to be utilized prior to 30 November 2006.2
By letter to the agency dated May 15, 2006, complainant claimed breach
of provisions 2(a) and 2(b). Specifically, complainant claimed that he
was still in the 8255 job series; and that the agency failed to provide
him with 50 hours of compensatory time.
In its June 7, 2006 final decision, the agency found no breach of
provision 2(a). The agency determined that a review of the Record of
Personnel Action (RPA) indicated that complainant was reassigned to
the position of Aircraft Mechanic Repairer Supervisor, WS-8840-10 in
the 309th CMXG/MXCD which had been back dated to the effective date
of January 15, 2006. The agency did not address its alleged breach of
provision 2(b) of the settlement agreement.
On appeal, complainant states "although I was working within the CMXG/MXCD
organization, this clearly shows that the action was not taken until
01 June 2006 and backdated to 15 January 2006. In light of this, I
feel that the agency did not uphold their commitment to the settlement,
and that I have the right to reopen in order to show pertinent facts to
my present complaint." Complainant makes no reference to the alleged
breach of provision 2(b).3
In response, the agency asserts that complainant's third-level supervisor
(S3) stated that on January 9, 2006, complainant was reassigned to
the position of Aircraft Mechanic Repairer Supervisor, WS-8840-10 in
the 309th CMXG/MXCD organization. The agency further asserts that S3
stated that a review of complainant's time card for the two week period
commencing January 9, 2006 indicated that he began working on January 9,
2006, and that he worked overtime in his reassigned position on January
13 and 21, 2006. The agency determined that S3 stated that a review of
complainant's Career Civilian Brief indicated that he began his reassigned
position on January 15, 2006.
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).
The record contains a copy of an August 15, 2006 affidavit from S3.
Therein, S3 stated that on January 9, 2006, complainant was physically
reassigned to the position of position of Aircraft Mechanic Repairer
Supervisor, WS-8840-10 in the 309th CMXG/MXCD organization. The record
also contains a copy of complainant's RPA dated June 6, 2006 and
Notification of Personnel Action (Standard Form 50-B) dated June 16, 2006.
A review of both forms indicated that complainant was reassigned to the
subject position effective January 15, 2006.
The terms of provision 2(a) of the agreement require management to
reassign complainant to the from his Pneudraulic System Mechanic
Supervisor position within the 309 CMXG/MXCJ organization to the
position of Aircraft Mechanic Repairer Supervisor in the 309 CMXG/MXCD
organization on January 15, 2006. If complainant wanted the agency to
update his RAP and SF-50 with the subject reassignment on January 15,
2006, he could have negotiated with the agency to include this provision
into the settlement agreement. See Jenkins-Nye v. General Service
Administration, EEOC Appeal No. 01851903 (March 4, 1987). Finally, we
note that while S3 stated that complainant was reassigned on January 9,
2006, complainant's SF-50 indicated that complainant was reassigned
effective January 15, 2006. The 6-day difference of the effective
date of complainant's reassignment does not impact our decision herein.
Therefore, we find the agency complied with provision 2(a) of the December
22, 2005 settlement agreement.
Accordingly, the agency's decision finding no breach of provision 2(a)
of the instant 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
November 22, 2006
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The settlement agreement also provides for complainant to be re-instated
into the Leadership Development Course, Project Management Class.
This provision is not at issue in the instant appeal.
3 The record reflects that in her e-mail to complainant dated March
1, 2006, the EEO Counselor informed complainant that 50 hours of
compensatory time had been credited to him and that it would show on his
next pay statement. Given this circumstance, and as complainant has
not further addressed this provision on appeal, the Commission will
not address whether the agency is in compliance with provision 2(b)
of the instant settlement agreement.
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0120064129
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064129