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.