01986233
11-02-1999
Jose E. Lugo-Acosta, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jose E. Lugo-Acosta v. Department of the Navy
01986233
November 2, 1999
Jose E. Lugo-Acosta, )
Appellant, )
)
v. ) Appeal No. 01986233
) Agency No. 94-60921-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's July 13, 1998
decision finding that the agency did not breach the settlement agreement
entered into by the parties on August 3, 1994 and amended on October
24, 1994.
The August 3, 1994 settlement agreement provided in part that the agency
would reclassify appellant's position title to Environmental Engineer and
realign appellant as group leader in C287. The October 24, 1994 amendment
to the settlement agreement provided that appellant would be group leader
in RCRA/HAZMAT Programs (C286) and that the duties of the position will
be as contained in an attached classified position description.
By letter dated June 30, 1998, appellant informed the agency that the DEMO
Project change in appellant's position description was a breach of the
settlement agreement that incorporated a specific position description.
In the July 13, 1998 decision, the agency found that the Personnel
Demonstration Project (referred to as the DEMO project) was initially
implemented for the Naval Surface Warfare Center, Dahlgren Division,
Dahlgren Laboratory on March 29, 1998. The agency found:
A fundamental element of the Warfare Center's Personnel Demonstration
Project is a simplified white collar classification and pay component.
The OPM-developed classification standards are replaced by a small
number of one-page, generic benchmark standards developed within the
Demonstration project.
The agency concluded that it had not breached the settlement agreement.
On appeal the agency notes that appellant "does not purport that he is
not performing the underlying duties and responsibilities of the position
as previously agreed to."
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)).
The Commission finds that the agency was not obligated under the
agreement as amended, to keep appellant's position description perpetually
the same. Appellant has not challenged the agency's assertion in the
decision that the DEMO project was initially implemented on March 29,
1998. Therefore, the earliest that appellant's position description was
altered was approximately three and one-half years after the agreement
was amended. A change in the position description three and one-half
years after the amendment to the agreement was entered into does not
constitute a breach of the agreement. Furthermore, in a breach of
settlement decision involving the same appellant, the Commission found
that there was no evidence that the agency entered the instant settlement
agreement in bad faith. Lugo-Acosta v. Department of the Navy, EEOC
Appeal No. 01983510 (June 2, 1999).
The agency's decision finding that the agency did not breach the
settlement agreement is AFFIRMED.
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 (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:
11/02/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations