James E. Wilkins, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 17, 1998
01976206 (E.E.O.C. Nov. 17, 1998)

01976206

11-17-1998

James E. Wilkins, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


James E. Wilkins v. Department of the Army

01976206

November 17, 1998

James E. Wilkins, )

Appellant, )

)

v. ) Appeal No. 01976206

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's July 30, 1997

decision finding that the agency had not breached a settlement agreement

between the parties entered into on December 13, 1996.

The settlement agreement provided:

SECOND: The Agency hereby agrees as follows:

A. That [Person A] will prepare or cause to be prepared paperwork,

including SF-52's as necessary, which will make [appellant] his

subordinate, which will provide [appellant] a job or position description,

and which will have [appellant's] position surveyed for grade, within

30-days from the date of this agreement. It is understood that processing

this paperwork will take place immediately after the ongoing Reduction

In Force (R.I.F.) personnel freeze is lifted.

B. That [Person A] will take appropriate measures within his authority

to support [appellant's] consideration for the grade of GS-09.

C. That the 5-day suspension and any other paperwork referring to

same, including the proposal paperwork, will be removed/expunged from

[appellant's] official personnel folder.

By letter dated June 10, 1997 appellant alleged that the agency breached

provisions Second (A), Second (B), and Second (C) of the agreement.

In the decision the agency found that the agency had complied with the

agreement.

EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. If the complainant believes that the agency

has failed to comply with the terms of a settlement agreement, then the

complainant shall notify the EEO Director of the alleged noncompliance

"within 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 the complaint be reinstated for further

processing from the point processing ceased. Id.

Settlement agreements are contracts between the appellant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th Cir.

1938). In reviewing settlement agreements to determine if there is a

breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

Provision Second (A)

In the agency's decision the agency found that on June 16, 1997

appellant's position was evaluated, appellant received a job description

on April 24, 1997, and that during the course of these actions an

SF-52 was issued. The Commission finds that there is no documentary

evidence in the record which the agency has clearly identified as showing

that appellant is subordinate to Person A. Furthermore, there is no

documentary evidence in the record showing that appellant was provided

a copy of a position description.<1> Finally, there is no documentary

evidence in the record which the agency has clearly identified as showing

that appellant's position was "surveyed for grade." Although there is

a copy of an SF-52 in the record requesting a "restudy," there is no

clearly identified documentation showing that a "restudy" was actually

undertaken and completed.

The Commission finds that the affidavit from Person A and the

documentation submitted by the agency fail to show that the agency

complied with provision Second (A) of the settlement agreement.

Therefore, we shall remand provision Second (A) so that the agency may

submit the appropriate documentation to show that it has complied with

provision Second (A) of the settlement agreement.

Provision Second (B)

The agency has supplied an affidavit from Person A in which Person

A stated that he complied with provision Second (B) of the settlement

agreement "by recommending to my chain of command that [appellant] be made

a branch chief for the section he currently serves." The Commission

finds that appellant has not provided any reason to doubt Person

A's statement concerning his compliance with provision Second (B).

There is no indication that Person A has acted in bad faith. Finally,

appellant has not indicated what measures Person A failed to take to

support appellant's consideration for the grade of GS-09. Therefore,

we find that appellant has failed to show that the agency has breached

provision Second (B) of the settlement agreement.

Provision Second (C)

The agency has supplied an affidavit from the Installation Labor Attorney

who stated that in late February 1997 he expunged all references to the

5-day suspension from appellant's official personnel folder. The agency

has also supplied an affidavit from Personnel Assistant, CPAC, stating

that on June 9, 1997 the Personnel Assistant "destroyed all documentation

contained in Management-Employee Relations (MER) files that were used

to formulate the 5-day suspension of [appellant]." Appellant has not

shown that there is any reason not to believe the agency's claim that the

appropriate documents were destroyed. Therefore, we find that the agency

has complied with provision Second (C) of the settlement agreement.

The agency's decision finding that provision Second (A) of the settlement

agreement has not been breached is VACATED and we REMAND provision Second

(A) of the settlement agreement to the agency for further processing in

accordance with this decision and applicable regulations. The agency's

decision finding that it did not breach provisions Second (B) and Second

(C) of the settlement agreement is AFFIRMED.

ORDER

The agency shall supplement the record with the following evidence in

order to show that the agency has complied with provision Second (A)

of the settlement agreement:

1. Clearly identified documentary evidence showing that appellant is

subordinate to Person A.

2. Evidence showing that appellant was provided a copy of a position

description.

3. Clearly identified documentary evidence showing that appellant's

position was "surveyed for grade."

Within 30 days of the date this decision becomes final the agency shall

issue a new decision determining whether the agency breached provision

Second (A) of the settlement agreement. A copy of the agency's new

decision must be sent to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. 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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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:

November 17, 1998

DATE Ronnie Blumenthal, Director

1There is a copy of a position description in the record which the agency

apparently asserts is appellant's position description. There is no

indication that this position description has been sent to appellant and

appellant argues that he never received a copy of the new position

description.