01980748
10-07-1998
Myron W. Cummings, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Myron W. Cummings, )
Appellant, )
)
v. ) Appeal No. 01980748
) Agency No. AL900980097
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely appealed the agency's decision finding that it had
complied with 29 C.F.R. �1614.504. See 29 C.F.R. �1614.402, .504(b);
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether appellant timely raised his allegations
of settlement breach.
BACKGROUND
Appellant filed a formal EEO complaint that was subsequently resolved
by a settlement agreement that the parties entered into on January 29,
1997. The agreement stated in relevant part that the agency agreed to
do the following:
The Colonel agrees to a management reassignment and pay retention IAW
5 C.F.R. �536. (Position offered is Management Analyst, GS-343-09,
in the Manpower Office).
The Colonel agrees to permit pay and grade retention, if determined to
be legal.
The Colonel agrees to implement and complete reassignment action as soon
as possible (2 to 3 weeks).
By letter dated August 6, 1997, appellant requested that he receive
grade retention. Appellant stated that the Colonel as part of the
settlement agreement, agreed to provide him pay and grade retention if
it was deemed legal. Appellant claimed that he received pay retention
but not grade retention. According to appellant, the Chief, Personnel
Management Element provided him with the regulation that states when
grade retention applies. Appellant argued that settlement agreements
are not excluded by the regulation.
By memorandum dated August 15, 1997, the agency responded that although
the settlement agreement was signed on January 29, 1997, appellant did not
contest the relevant provision of the agreement until six months later.
The agency reiterated that appellant would not be granted grade retention.
The agency stated that pursuant to 5 C.F.R. �536.103(a), grade retention
shall apply to an employee who moves to a position in a covered pay
schedule which is lower graded than the position held immediately prior
to the demotion in the following circumstances:
(1) As a result of reduction in force procedures; or
(2) As a result of a reclassification process.
By letter dated September 9, 1997, appellant notified the agency
that it had breached the settlement agreement by not granting him
grade retention. Appellant claimed that although grade retention is
not listed in the pertinent regulation, grade retention is legal when
offered in a settlement agreement.
On October 27, 1997, the agency issued a final decision wherein it
determined that it had not breached the settlement agreement. The agency
noted that although it determined that grade retention is not within the
law, pay retention is allowable. According to the agency, pay retention
was implemented when appellant was reassigned to his new position,
following his release from sick leave. The agency noted that appellant
was apprised by the Civilian Personnel Office immediately after he signed
the settlement agreement that he could not receive grade retention.
On appeal, appellant contends that no written guidelines exist with
regard to what can and cannot be offered in settlement agreements.
Appellant claims that the Civilian Personnel Office has refused to approve
grade retention despite the fact that the agreement states that �This
agreement does not need to be approved by the Civilian Personnel Office�.
In response, the agency asserts that appellant is untimely in his
allegation that the settlement agreement has been breached. The agency
argues that appellant learned that he would not receive grade retention
on January 29, 1997, the date that the settlement agreement was signed,
but that appellant did not claim the agreement was breached until his
letter dated September 9, 1997. Additionally, the agency states that
the Chief, Personnel Management Element provided appellant with a copy
of the law on grade retention on January 30, 1997. In support of its
position, the agency submits a copy of the personnel action effective
February 14, 1997, that reflects appellant's reassignment. The agency
notes that the remarks section stated that appellant is entitled to
pay retention, but no remark was made with regard to grade retention.
According to the agency, appellant received a copy of the personnel
action in February 1997. The agency further asserts that the settlement
agreement has been honored and implemented, but that grade retention is
not permitted by law in these circumstances. The agency notes that grade
retention shall apply to an employee who moves to a position in a covered
pay schedule which is lower graded than the position held immediately
prior to the demotion if the move is a result of a reduction in force
or as a result of a reclassification process. The agency maintains
that although the agreement states that it did not need to be approved
by the Civilian Personnel Office, this statement did not eliminate the
requirement to abide by personnel regulations. Further, the agency notes
that appellant was placed on notice that the grade retention would occur
only if it was legal.
ANALYSIS AND FINDINGS
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
In the case at hand, appellant alleges that the agency breached the
settlement agreement by not granting him grade retention. However, it
is evident from the record that appellant was informed by the Chief,
Personnel Management Element on January 29, 1997, and January 30, 1997,
that his situation did not meet the criteria for the granting of grade
retention. It was explained to appellant that he would not receive grade
retention because his demotion was not the result of a reduction in force
or a reclassification process. Appellant did not raise an allegation
of noncompliance with regard to this issue until more than six months
after he learned that he would not receive grade retention. Therefore,
we find that appellant failed to raise an allegation of noncompliance
in a timely manner. Accordingly, the agency's final decision is hereby
AFFIRMED for the reasons set forth herein.
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. �1614.604(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:
Oct. 7, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations