0120110277
04-05-2011
Tom A. Moore, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Tom A. Moore,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120110277
Agency Nos. 9D1S07047H08 & 9D1S10014
Hearing No. 480-2008-00562X
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency determination dated September 17, 2010, finding that it was in
compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Supervisory Human Resources Specialist (Classification) at the Agency's
Headquarters Space and Missile Systems Center facility in Los Angeles
Air Force Base, CA. On April 16, 2010, he and the Agency entered into
a settlement agreement to resolve EEO Agency case numbers 9D1S07047H08 &
9D1S10014, and EEOC Hearing No. 480-2008-00562X. The settlement agreement
provided, in pertinent part, for the following:
(1) To promote Mr. Moore to the IA-4 (GGE-14) position of Chief,
Title 5 Classification Branch, SMC Directorate of Manpower and Personnel.
This promotion will take effect within 90 days from the execution of
this agreement. The actual pay setting will be determined by the Air
Force Personnel Center; and
(2) The lump sum payment of $35,000 via [Complainant attorney's]
account by Electronic Funds Transfer....[will be paid].
Pursuant to the settlement agreement, the Agency changed Complainant
from the position of Supervisory Human Resources Specialist, Pay Plan
IA, Grade 04, wages $118,486 to Supervisory Human Resources Specialist
(Classification), Pay Plan IA, Grade 04, wages $125,649. Complainant does
not dispute the finding in the FAD that this change involved moving him
from first line supervisor to Division Chief.
By email on August 11, 2010, Complainant alleged that the Agency
breached the settlement agreement, and requested that it be implemented.
Specifically, he alleged that the Notification of Personnel Action,
SF-50, effecting the job change characterized the "nature of the action"
to be a "reassignment." He contended this was a breach because under
the settlement agreement, he was to be promoted.
An Agency Human Resource Specialist explained that in order for the nature
of the action in the SF-50 to be characterized as a promotion under the
current pay system, Complainant would have to be moved to Grade 5, and
this was not in the settlement agreement. Complainant countered that
under the settlement agreement, the Agency had authority to characterize
the nature of the action as a promotion. In an effort to resolve the
dispute, the Agency added a comment to the SF-50 of "Promoted from GG-13
to GG-14", designations used under the prior pay system.
CONTENTIONS ON APPEAL
Complainant contends that under the prior pay system, he moved from the
GG-13 to GG-14 level, and hence the SF-50 should reflect that the nature
of the action was a promotion. He writes that without this wording, no
promotion has been officially effected. He argues that under personnel
regulations, the Agency has authority to characterize the nature of the
action in the SF-50 as a promotion because of the settlement agreement.
In opposition to the appeal, the Agency argues that because Complainant
moved from an IA-4 to IA-4 position, the SF-50 had to characterize the
nature of the action as a reassignment. It argues that Complainant was
promoted from a first line supervisor (GG 13 equivalent) to a Division
Chief (GG-14 equivalent) and received a concomitant increase in pay.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
Complainant contends that he was not promoted, as agreed, because the
SF-50 effecting his position change characterized the nature of the
action to be a reassignment. Under the settlement agreement, the
Agency was to promote Complainant to IA-4 (GGE-14) position of Chief.
The Agency did this by promoting him the IA-4 Chief position, with a
concomitant increase in pay and responsibility.
Under the current pay system, the GG/GGE terminology is no longer used.
Since Complainant moved from one IA-4 to another IA-4 position, the SF-50
characterized the nature of the action as a reassignment. Complainant
does not dispute that he was moved into the position which was agreed to,
with an increase in pay and responsibility. Given these circumstances,
we find that the Agency complied with the settlement agreement.
The Agency's determination that it was in compliance with the settlement
agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 (S0610)
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 (Z0610)
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
April 5, 2011
__________________
Date
2
0120110277
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110277