01992220
02-26-2001
Lee E. Lewis, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Lee E. Lewis v. Department of the Army
01992220
February 26, 2001
.
Lee E. Lewis,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01992220
Agency No. BHFR9806I0990
DECISION
Complainant alleged breach of a September 22, 1998 settlement agreement.
By decision dated March 22, 1999, the agency denied breach. On appeal,
complainant argues that the agency failed to provide the position
within thirty (30) days as required by the agreement, did not provide
complainant with a permanent position, and failed to make a �bona-fide�
offer because the position involved �hollow� duties interspersed between
different departments.
The settlement provided, in relevant part:
The Army agrees that [the] Logistics Division . . . will establish a
permanent position containing patient transport coordination duties. . . .
If the position is classified at a grade lower than the WG-7, in either
the Wage-Grade (WG) or General Schedule (GS), the employee's current
retained grade entitlement will remain in effect . . . . [M]anagement
officials will complete all necessary requirements for the establishment
of such a position and submit all necessary information to the CPAC
within 30 days of the effective date of this agreement.
Any settlement agreement knowingly and voluntarily agreed to by the
parties is binding on both parties. See 29 C.F.R. � 1614.504(a).
The Commission interprets the parties' intent by the contract's terms,
and not by some unexpressed intention. See Eggleston v. Department of
Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990).
The record reveals that the Chief of Logistics submitted a request for
personnel action for a permanent position for complainant on October 21,
1998. Complainant was offered a GS-5 position as Patient Transportation
Specialist on February 2, 1999.
Although complainant did not receive the position for several months,
he received the position within a reasonable time. Further, the job's
position description involves the duties stated in the settlement
agreement. If complainant wished to have more specific duties or
responsibilities, he should have negotiated to have these matters
expressly provided in the settlement agreement.
The record is less clear concerning the permanent nature of the position.
Complainant contends that he was placed in a position slated for
elimination in favor of private contractors. The record does not include
a notice of personnel action or other official document indicating whether
complainant's position was permanent. As a result, the Commission is
unable to determine whether complainant was given a permanent position
as provided for in the agreement.
CONCLUSION
Accordingly, to the extent complainant alleges breach of the agency's
time limit to provide his position, or of the position description's
duties, the agency's findings are AFFIRMED. The agency's findings
concerning complainant's claim that the agency failed to provide him
with a permanent position are VACATED, and the claim is REMANDED for a
supplemental investigation.
ORDER
The agency shall obtain a copy of the notice of personnel action or other
official document indicating whether complainant's position he was placed
in pursuant to the settlement agreement was permanent. The agency shall
determine whether it provided complainant with a permanent position
and shall issue a new decision regarding this claim of breach (i.e.,
the establishment of a permanent position issue) within 30 days of the
date this decision becomes final. The agency must provide the Compliance
Officer, as referenced herein, a copy of the new decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
February 26, 2001
__________________
Date