01994605
01-31-2001
Jessie F. Berlanga, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Jessie F. Berlanga v. Department of the Navy
01994605
January 31, 2001
.
Jessie F. Berlanga,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01994605
Agency Nos. DON 90/91-65888-013
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated April 22, 1999, finding that it was in compliance
with the terms of the February 23, 1993 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
2. In exchange for the promises of the Complainant contained in paragraph
1 of this Agreement the Agency agrees that:
(B) Additionally, in the future, if any Engineering Technician within said
laboratory is to be detailed to a Supervisory Engineering Technician
position and /or any such similar managerial position for training
purposes or otherwise, then such detail will be accomplished in an
equitable manner with all interested Engineering Technicians in the NPSL
[Navy Primary Standards Laboratory] being considered and rotated into
such detailed Supervisory Engineering Technician position and/or any
such similar managerial position in so far as practical taking into
account sound management and business practices and the principles of
Total Quality Management (TQM).
By letter to the agency dated March 8, 1999, complainant alleged
that he learned on February 3, 1999 that the agency was in breach of
paragraph 2(B) of the settlement agreement, and requested it reinstate
the complaints settled by the agreement. Specifically, complainant
alleged that �Code 41400" within his organization willfully excluded
Engineering Technicians such as himself from management position training
made available to Engineers.
In its April 22, 1999 decision, the agency concluded the settlement
agreement had not been breached. The agency determined that, as
of October 1997, a new organization had been put in place that had
eliminated the only supervisory GS-12 position available in complainant's
�Competency� (4.4.1), which was made up of Codes 41400, 41430, 41440,
and 41450. The agency further explained that the four current supervisory
positions were in the Engineering professional series, which is distinct
and dissimilar from the Engineering Technician series, and that there
was no longer a Supervisory Engineering Technician position into which
Engineering Technicians could rotate or receive training.
On appeal, complainant asserts that, although a reorganization took
place, a named Supervisory Engineering Technician never lost his title
or responsibilities as a supervisor until he retired in January 1999.
Complainant additionally claimed that the named Supervisory Engineering
Technician gave training to all engineers that worked for him so that
one of them would be selected to take his place when he retired. In its
response, the agency states that the Supervisory Engineering Technician in
question retained his position description, but held no supervisory duties
after the reorganization, and that all supervisors have been Engineers
since the reorganization. The agency also notes that complainant has
not furnished any specifics on the training he believes was provided.
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, we find that complainant has not shown that the
agency has breached the settlement agreement. Complainant's claim of
breach consists of his assertion that training was given by a named
Supervisory Engineering Technician to Engineers so they could take over
his supervisory position. Not only has complainant failed to provide
evidence that such training existed or how it was implemented, but he
has not shown how its existence would violate the settlement agreement.
Paragraph 2(B) of the agreement states that �if any Engineering
Technician within said laboratory is to be detailed to a Supervisory
Engineering Technician position and/or any such similar managerial
position for training purposes or otherwise, then such detail will be
accomplished in an equitable manner.� Complainant, however, has not
asserted that an Engineering Technician was detailed for training to
a Supervisory Engineering Technician position or similar managerial
position, but only that Engineers were trained in some manner by a
Supervisory Engineering Technician for supervisory duties and Engineering
Technicians were not. Consequently, even if complainant's breach claim
regarding the training of Engineers for supervisory duties is assumed
to be true, it does not represent a breach of the settlement agreement.
Accordingly, for the reasons set forth herein, the agency's decision
finding that the settlement agreement had not been breached is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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. 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 (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
January 31, 2001
__________________
Date