0120080583
03-14-2008
Rocco Rafaniello, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Rocco Rafaniello,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120080583
Agency No. IRS-07-0887
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the agency dated October 17, 2007, finding that it was in compliance with the terms of an April 30, 2007 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The April 30, 2007 settlement agreement provided, in pertinent part, that:
1(a) By May 4, 2007, the Agency will provide the Aggrieved with a training plan and schedule that includes the items listed below for the duration of 10 weeks beginning May 4, 2007 and concluding July 13, 2007:
..........
1(a-3) Allow the Aggrieved to complete Tax Law Research: Advanced in ELMS.
1(a-4) Provide the Aggrieved a "LEXIS" workshop and provide the Aggrieved with a "LEXIS" user ID and password.
1(a-5) Provide the Aggrieved with LEXIS Research Product Training.
1(a-6) Provide workshops for TCO-UNIT2 training for the tested topics that the Aggrieved missed.
..........
1(d) The Aggrieved will be provided 1 hour of credit time for August 11, 2006. The Agency agrees to process the personnel action by May 4, 2007.1
By letter to the agency dated August 2, 2007, complainant claimed that the agency breached the following provisions: provision 1(a) when his training in the "training list" was not concluded by July 13, 2007; provision 1(a-3) because the advanced training was incomplete; provisions 1(a-4) and 1(a-5) when he was not provided LEXIS Research Product Training workshop; provision 1(a-6) when he was not provided all workshops as specified in the "training plan," and the "training plan" that was agreed upon was to include 3 days (24 hours), one day for each of the following topics: IRC 1231, IRC 166(d) and IRC 170; and provision 1(d) when he was only provided one hour of credit time but was not credited with subsequent time during the period covered by the agreement.
In its October 17, 2007 final decision, the agency found no breach. The agency stated that according to the Field Operations Director (FOD), the agency was in compliance with the agreement. Regarding provision 1(a), the FDO acknowledged that she provided complainant with a training plan and schedule that includes various training and workshops mentioned in the instant settlement agreement for the period of May 4, 2007 to July 13, 2007. In support of her assertions, the FDO submitted a copy of memorandum dated May 1, 2007 she sent to complainant concerning his training plan and schedule.
Regarding provision 1(a-3), FOD stated that when complainant started Tax Law Research: Advanced training on June 5, 2007, he had completed two hours of training when he encountered problems with the system. As a result, complainant was unable to complete training. FOD stated that while complainant submitted a Help Desk ticket, he took no additional action. FOD stated that the training is self-instructional and can be completed as complainant's schedule permits. FOD stated that complainant has not provided an explanation for his failure to complete the Tax Law Research: Advanced training.
Regarding provisions 1(a-4) and 1(a)-(5), FOD stated that the LEXIS Research Product Training was scheduled for July 19, 2007. FOD stated, however, that complainant chose to work on something else instead. FOD stated that while the subject training is self-instructional, complainant completed it on August 21, 2007. FOD stated that the settlement agreement does not stipulate that the subject training was to be delivered via one-on-one classroom.
Regarding provisions 1(a-6), FOD stated that the three IRS workshops were completed in August 2007. Specifically, FOD stated that workshop IRC 1231 was originally scheduled for June 15, 2007, but that it was rescheduled and completed on August 2, 2007. FOD stated that in regard to workshop IRC 166(d), it was originally scheduled for June 22, 2007, but complainant did not complete it. FOD stated that the subject workshop was rescheduled and complainant completed training on August 8, 2007. FOD stated that workshop IRC 170 was originally scheduled for June 28, 2007, but was rescheduled and complainant completed it on August 8, 2007. FOD stated that the May 1, 2007 training plan did not specify a time period of 8 hours for each workshop.
Regarding provision 1(d), FOD stated that complainant was provided one hour of credit time for August 11, 2005. FOD further stated that there is nothing in the settlement agreement that states that the agency is to provide complainant additional time.
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).
The Commission finds no breach of provisions 1(a), 1(a-3), 1(a-4), 1(a-5), 1(a-6) and 1(d). We note that the record contains copies of the FDO's memorandum to complainant dated May 1, 2007 concerning a training plan and schedule (provision 1(a)) and a copy of the FDO's memorandum to the Office of Civil Rights and Diversity dated October 10, 2007 in response to complainant's breach claims. We determine that provisions 1(a), 1(a-3), 1(a-4), 1(a-5) and 1(a-6) require the agency to provide complainant with a training plan and schedule; and various training and workshops. After a review of the record, including the FDO's memorandum, we find that the agency is in compliance with the subject provisions.
With respect to provision 1(a-3), we note that this provision requires the agency to allow complainant to complete Tax Law Research: Advanced in ELMS. Regarding provision 1(d), we note that this provision requires the agency to provide complainant with one hour of credit time for August 11, 2006. Regarding provision 1(a-6)), we note that this provision requires the agency to provide complainant workshop for TCO-UNIT2 training for the tested topics that he had missed.
Accordingly, the agency's finding of no breach of provisions 1(a), 1(a-3), 1(a-4), 1(a-5), 1(a-6) and 1(d) of the instant settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
March 14, 2008
__________________
Date
1 The settlement agreement also provides for the agency to assign complainant an On-the-Job instruction in the post of duty for 40 hours per week; allow complainant time for training on the workload calendar without reducing "follow-up" and "pre-plan" days; provide complainant On-the-Job Training for TCO-Unit 3; allow complainant 4 hours per week to "pre-plan" cases and create cases in the RGS computer system for the duration of 6 weeks beginning May 4, 2007 and concluding June 15, 2007; and provide complainant with 1 hour of administrative leave for the time period of 9:00 a.m. to 10:00 a.m. on April 30, 2007. These provisions are not at issue in the instant appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120080583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120080583
6
0120080583