01A22446_r
03-20-2003
Carl B. Vactor, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Carl B. Vactor v. Department of the Air Force
01A22446
March 20, 2003
.
Carl B. Vactor,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A22446
Agency No. WE1M00115
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated February 4, 2002, finding that it was in compliance with
the terms of an October 4, 2000 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The October 4, 2000 settlement agreement provided, in pertinent part,
that:
(5) The Agency will continue to accommodate the complainant's medical
limitations. Assignments given him, to include issuing rental issues,
answering phones, operating resale outlets, and other duties as assigned
will be consistent with his medical limitations. Assignment changes will
be made in writing. Complainant will receive a Position Description and
a Performance Plan which reflects the duties he performs, or is expected
to perform, along with �other duties as assigned,� consistent with his
qualifications and medical limitations.
By letter to the agency dated January 22, 2002, complainant alleged
that the agency breached the October 4, 2000 settlement agreement.
Specifically, complainant alleged that the agency failed to put
his assignment changes in writing; failed to provide him a Position
Description and Performance Plan; and failed to assign him duties
that were consistent with his medical limitation, as identified by a
physician in a letter to Office of Workers Compensation Programs (OWCP)
dated December 8, 2001.
In its February 4, 2002 FAD, the agency found, without elaboration, that
it was in compliance with the terms of the October 4, 2000 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 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 Commission notes that on appeal, complainant submits a copy of his
supervisor's undated Memorandum for Civil Personnel concerning his duties,
wherein the supervisor stated that complainant received the Position
Description and Addendum to the Position Description on October 19,
2000 which states that he will not retrieve or lift any item over ten
pounds and lists his duties. Therein, the supervisor states �I have
never required [complainant] to do anything that was not listed in the
Addendum to the Position Description that he received on 19 Oct 00...�
Despite complainant's submission of the above referenced Memorandum,
the Commission determines that the record in this case contains
insufficient evidence for us to determine whether a breach of the
instant settlement agreement has occurred. We note, for example,
that the record does not contain a copy of a Position Description or
Performance Plan, as identified in the settlement agreement. The agency's
cursory determination that it did not breach the settlement agreement
is not responsive to complainant's claim that he was not assigned duties
consistent with his medical limitation. Given this lack of evidence, we
are unable to ascertain whether the agency complied with the settlement
agreement. 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.
Moreover, the Commission notes that complainant cites additional
incidents of reprisal. Pursuant to 29 C.F.R. � 1614.504(c) allegations
that subsequent acts of discrimination violate a settlement agreement
shall be processed as separate complaints. Therefore, if complainant
intends to raise a claim of retaliation, complainant should contact an
EEO Counselor thereon.
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 the settlement agreement. The supplementation of
the record shall include evidence indicating whether duties assigned
to complainant are consistent with his medical limitations; whether
any assignment changes were reduced to writing; and whether a Position
Description and a Performance Plan were issued reflecting the duties
complainant performs, or is expected to perform, as well as other assigned
duties consistent with his qualifications and medical limitations.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new decision concerning whether it breached
the 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
March 20, 2003
__________________
Date