0120091827
06-12-2009
Steven L. Pellicano, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Steven L. Pellicano,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091827
Agency No. 8L1M08065
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 19, 2008, finding that it
was in compliance with the terms of the September 23, 2008 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that the agency
would:
2(a) Form an Investigative Process Team (IPT) under the aegis of [RD,
Deputy Director] to look into the 309th Maintenance Wing's compliance
with and implementation of the terms of the agency's Light Duty Program
[LDP]. The investigation shall commence no later than 30 days after
the execution of the settlement agreement in this matter. The IPT will
consist of at least the following invited personnel and or organizational
representatives: RD as chairperson, [complainant], DPC, JA, and AFGE. The
results of the IPT will not form the basis for any cause of action. RD
will consider the inputs before making any recommendations in changes
to the 309th Maintenance Wing's implementation of the agency's LDP,
and these recommendations and results will be available to all of the
IPT participants.
2(b) Provide complainant the opportunity for input and recommendations
regarding personal and union concerns to the ongoing IPT concerning the
agency physically disqualified program (PDP). . . .
2(c) Pay complainant the sum of $1300.00. Complainant will be solely
responsible for any tax liability associated with this payment.
By letter to the agency dated December 3, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate his complaint. Specifically, complainant alleged
that the agency failed to form the investigative process team described
in provision 2(a) of the agreement and failed to provide him with the
opportunity to provide input as required by provision 2(b).
In its December 19, 2008 FAD, the agency concluded that it was not in
breach of the agreement. The agency stated that management addressed the
LDP in a policy statement dated December 15, 2008. However, the agency
did not address or provide information as to the formation or meeting
of an IPT to study the issue. The agency also did not even allege that
complainant was provided the opportunity to give feedback to an ongoing
IPT on either the LDP or PDP programs.
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.
The Commission has held that 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 further
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 settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon 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, the agency has failed to show that it complied with
the express terms of the agreement. Complainant, who the agency had
agreed was to be a member of the IPT, has asserted, and the agency does
not deny, that the IPT never met and deliberated on the LDP/PDP issues,
and complainant was never given an opportunity to provide input during
the process. These steps were clearly required by provisions 2(a) and
(b) of the agreement and the agency has provided no evidence whatsoever
of compliance with these terms. Therefore, the Commission concludes that
complainant has established that the agency has breached the settlement
agreement.
However, complainant is given notice that if he wishes to have his
complaint reinstated he must return all monies received under the
agreement. Thus, the Commission is giving complainant the option of
returning the money and having his underlying complaint reinstated or
requiring the agency to provide specific performance of the provisions
of the agreement
Accordingly, the Commission concludes that the agency breached
the September 23, 2008 settlement agreement it had with complainant.
In order to remedy this breach, the agency must comply with the Order
set forth below
ORDER
Within 30 calendar days of the date this decision becomes final,
the agency is ordered to provide complainant, in writing, with the
option of reinstating his complaint and returning all monies received
under the settlement agreement, or requiring specific performance of
the agreement, including the formation and meeting of an IPT and an
opportunity for complainant to provide input and recommendations during
the IPT process as required by provisions 2(a) and (b) of the agreement.
If complainant elects specific performance of the agreement, the IPT,
which shall include complainant as a member, will hold its first meeting
within 30 calendar days of complainant's election.
A report of compliance with this Order must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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)
(1994 & Supp. IV 1999). 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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 12, 2009
__________________
Date
2
0120091827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091827