01992673
09-15-1999
Frank C. Garcia, Jr., Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Frank C. Garcia, Jr. v. Department of the Air Force
01992673
September 15, 1999
Frank C. Garcia, Jr., )
Appellant, )
)
v. ) Appeal No. 01992673
) Agency No. KH0F96355
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
On February 9, 1999, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated January 19, 1999,
finding that it was in compliance with the terms of the October 19,
1998 settlement agreement into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
ISSUE
The issue presented is whether the agency properly determined that it
did not breach the settlement agreement entered into on October 19, 1998.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
(1) the agency is to make a lump sum payment to complainant in the amount
of three thousand one hundred eleven dollars and no cents;
(2) the agency shall request a desk audit of the complainant's current
position for the purpose of determining whether it should be upgraded
to a GS-808-12;
(3) the agency will take this action within sixteen days of the signing
of this agreement; and
(4) complainant withdraws his pending EEO complaint with prejudice to
refile the same at any time in the future and waives any and all of
his rights to the payment of back pay, benefits, or any other damages
whatsoever, and will not ask or petition for the same in any other
administrative or judicial forum.
By letter to the agency dated December 20, 1998, appellant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, appellant
alleged that the agency failed to request the desk audit for the purpose
of determining whether it should be upgraded to a GS-808-12.
In its January 19, 1999 FAD, the agency concluded that management
requested the audit from civil personnel on December 16, 1998. Initially,
personnel scheduled the desk audit for December 30, 1998. However,
due to workload, the agency found that it was conducted on January 7,
1999 and the agency is awaiting the results. This appeal followed.
ANALYSIS AND FINDINGS
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.
That section further provides that if the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
the complainant shall notify the Director of Equal Employment Opportunity
of the alleged noncompliance with the settlement agreement within thirty
(30) days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. �1614.504(a). The complainant may request
that the terms of the settlement agreement be specifically implemented
or request that complaint be reinstated for further processing from the
point processing ceased.
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 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 this instant case, we find that the agency agreed to pay appellant the
amount of three thousand one hundred and eleven dollars and no cents and
to request a desk audit of appellant's position in order to determine if
it should be upgraded to GS-0808-12. The agreement also stated that the
agency is to complete these actions within sixty days of the signing of
the settlement agreement (i.e. December 18, 1998). The agency fulfilled
the first part of the agreement when it issued appellant a check for
the amount specified in the settlement agreement on November 9, 1998.
The second portion of the agreement ordered the agency to request a desk
audit of appellant's position. The agreement did not require that the
agency complete the audit by December 18, 1998. By memorandum dated
December 16, 1998, the Chief of the Engineering Division requested
that the Directorate of Civilian Personnel Classification Division
(DPCCL) conduct a desk audit for position GS-0808-11 which is currently
assigned to appellant.<1> Since the agency requested the desk audit by
December 18, 1998, we find that it fulfilled the second provision of the
settlement agreement. Therefore, the Commission finds that the agency
did not breach the settlement agreement.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Commission also notes that the Chief of DPCCL, by memorandum dated
January 8, 1999, stated that the desk audit was performed on January 7, 1999.