Jose E. Lugo-Acosta, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 2, 1999
01986233 (E.E.O.C. Nov. 2, 1999)

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