01991454x
12-07-1999
John M. Rodriguez, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
John M. Rodriguez, )
Complainant, )
)
v. ) Appeal No. 01991454
F. Whitten Peters, ) Agency No. AL900990222
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On December 10, 1998, the complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated November 6,
1998, finding that it was in compliance with the terms of the January 16,
1996 settlement agreement (SA) into which the parties entered.<1> See
64 Fed. Reg. 37,644, 37,659-660 (1999) (to be codified at 29 C.F.R. ��
1614.402, 1614.504(b)); EEOC Order No. 960, as amended.
The SA provided, in pertinent part, that:
(2d) The agency agrees to allow Complainant a reasonable amount of
time to inquire of or meet with other organizations/managers regarding
placement opportunities. Complainant understands that his relief is
subject to approval of the supervisor based upon workload requirements.
By letter to the agency dated October 8, 1998, the complainant alleged
that the agency was not complying with paragraph (2d) of the SA,
and requested that the agency implement its terms. Specifically, the
complainant alleged that the agency added stipulations to the SA in an
effort to thwart any possible job relocation placement opportunities.
In its November 6, 1998 FAD, the agency concluded that the complainant's
supervisor's letter dated August 10, 1998, did not place any stipulations
on the SA or place an undue burden on the complainant. Therefore,
the agency found there was no breach of the SA.
64 Fed. Reg. 37,644, 37,660 (1999) (to be codified at 29 C.F.R. �
1614.504(a)) provides that any SA knowingly and voluntarily agreed
to by the parties, reached at any stage of the complaint process,
shall be binding on both parties. 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 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 SA, 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 the instant case, in a letter dated August 4, 1998, the complainant
requested that his supervisor honor paragraph (2d) of the January 16, 1996
SA. Specifically, the letter stated that the complainant had originally
approached the supervisor for official time, pursuant to paragraph (2d),
and on or about July 27, 1998, the supervisor orally responded with
stipulations for which the complainant requested clarification in writing.
By Memorandum dated August 10, 1998, the complainant's supervisor
clarified his position stating, inter alia, that:
Since your release from duty is based upon workload requirements,
you are required to notify me prior to leaving the work area after
prescheduling an appointment to meet with other organizations/managers
regarding placement opportunities. If workload permits, I will release
you for a reasonable amount of time via an administrative slip which will
be used to document your arrival/departure times during your absence.
After you have completed your placement inquiry/meeting, you will report
back to me with the administrative slip.
By letter to the Commander dated October 8, 1998, the complainant through
his representative, stated that the supervisor (the individual against
whom the original complaint was filed) �added stipulations to� the SA.
Additionally, the complainant believes that the supervisor did this to
thwart any possible job relocation placement opportunities.
In the agency's FAD, it found that the supervisor's letter of August
10, 1998, did not add any stipulations to paragraph (2d) of the SA.
The agency stated that in the SA the complainant specifically agreed that
he understood that his relief was subject to approval by the supervisor
based upon workload. The agency stated that the use of an administrative
slip to document the reasonable time given the complainant for meetings
regarding placement opportunities did not add any stipulations to the
agreement.
We agree with the agency, in this respect. The agreement does not
specifically state that the complainant may have reasonable time without
accounting for it, it states that the agency will allow reasonable time
with the supervisor's approval based upon workload. We find nothing wrong
with the agency's use of the administrative slip as a document to account
for both approval and the use of the complainant's reasonable time.
Moreover, nothing in the SA prevents this method of compliance with
paragraph (2d).
Accordingly, we AFFIRM the agency's determination that it is in compliance
with the SA that the parties entered into on January 6, 1996.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
12-07-99 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________ 1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all Federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.