01A04282_r
08-02-2001
Ejike J. Ajalla, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Ejike J. Ajalla v. Department of the Army
01A04282
August 2, 2001
.
Ejike J. Ajalla,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A04282
Agency No. 9905J0250, 9902J0110
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 1, 2000, finding that it was in
compliance with the terms of the May 27, 1999 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
b. The complainant will be reassigned from GS-0830-09, Mechanical
Engineer, job number 95003, in the Logistics Engineering Office,
Maintenance Engineering Division at the U.S. Army Defense Ammunition
Center, Savanna Army Depot, Savanna, Illinois, and promoted to GS-0830-11,
Step 2, Mechanical Engineer, job number 91555 in the Technical Training
Division, U.S. Army Defense Ammunition Center, McAlester Army Depot,
McAlester Oklahoma, supervised by [Person A], with an effective date of
20 June 1999.
By letters to the agency dated March 7 and 21, 2000, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that his complaints be reinstated. Specifically, complainant alleged
that: on February 28, 2000 his immediate supervisor informed him that
they do not have any job openings in the Technical Training Division
for a Mechanical Engineer, job number 91555; that his new position
description is for a Mechanical Engineer (Instructor) not a Mechanical
Engineer; and that he had been assigned to instruct courses, under
threat of disciplinary action, that correspond to the job functions
of a Quality Assurance Specialist (Ammunition Surveillance) (QASAS)
and not a Mechanical Engineer.
In its May 1, 2000 decision, the agency concluded that complainant's
claims of breach were untimely and that, in any event, it was in
compliance with the settlement agreement. Specifically, the agency
determined that complainant reviewed his new position description
in August 1999, but did not contact the agency regarding his breach
claim until March 7, 2000, which was approximately six months beyond
the thirty day time limitation specified in the agreement. The agency
also found that complainant's SF-50 verified that he had been promoted
to the Mechanical Engineer, job number 91555 position as stipulated in
the agreement.
On appeal, complainant asserts that although the position description
he reviewed in August 1999 was for a Mechanical Engineer (Instructor)
and not a Mechanical Engineer, he had �no problem with teaching any
mechanical engineering classes.� Complainant asserted that his problems
only started on February 28, 2000 (after his computer training ended),
�when they assigned me to teach courses designed for Quality Assurance
Specialist (Ammunition Surveillance) QASAS personnel� and told him they
had no opening that matched the settlement agreement. The agency has
made no submissions in response to complainant's appeal.
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).
In the instant case, as an initial matter, we find that complainant's
breach claim was timely raised. Although complainant noted that his
position description is for a Mechanical Engineer (Instructor) and
not a Mechanical Engineer, the essence of his breach claim is that the
agency did not place him in a Mechanical Engineering related position
as a Mechanical Engineer or Instructor, and that his duties were those
of QASAS personnel and not a Mechanical Engineer. As complainant was
only cognizant of his assigned duties and the lack of an opening for a
Mechanical Engineer on February 28, 2000, his breach claims of March 7
and 27, 2000, were timely.
With regard to the merits of complainant's breach claim, however,
there is insufficient evidence in the record to determine whether
the agency breached the settlement agreement. Despite the technical
position description listed on complainant's SF-50, the record clearly
indicates that complainant was assigned at least some QASAS duties,
under the threat of discipline, that were unrelated to the position
of Mechanical Engineer. As such, the agency cannot simply rely on
complainant's SF-50 to show compliance with the agreement. Nevertheless,
the record remains unclear as to whether the agency has otherwise assigned
complainant duties commensurate with the position of Mechanical Engineer
agreed to in the parties May 27, 1999 settlement. Therefore, we remand
complainant's breach claim to the agency to supplement the record with
evidence as to complainant's assigned duties from the effective date of
his reassignment to the present, and to issue a new determination as to
agency compliance with the agreement.
Accordingly, the agency's decision is VACATED, and the case is hereby
REMANDED for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ORDERED to take the following actions:
The agency shall supplement the record with evidence as to complainant's
assigned duties from the June 20, 1999 effective date of his reassignment
to the present, specifically including an affidavit from complainant's
immediate supervisor addressing complainant's specific duties and the
availability of duties related to the position of Mechanical Engineer;
Within thirty(30) calendar days of the date this decision becomes final,
the agency shall issue a new determination as to agency compliance with
the settlement agreement.
A copy of the agency's determination regarding compliance with the
settlement agreement must be sent to the Compliance Officer as referenced
below.
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 2, 2001
__________________
Date