01a33547
06-03-2004
Gustav Siegel, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Gustav Siegel v. Department of the Treasury
01A33547
June 3, 2004
.
Gustav Siegel,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A33547
Agency No. 01-0017B
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 18, 2003, finding that it was
in compliance with the terms of a June 11, 1999 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The June 11, 1999 settlement agreement provided, in pertinent part,
that the agency was to take the following action:
(A) Determine what details are available at the GS 13 and GS 14 level,
in and out of the Examination Division, in the Delaware-Maryland District
and Headquarters Office that [complainant] is qualified for and can be
assigned to, as soon as possible within the next six months.
(B) Assign [complainant] to acting managerial details, as soon as
possible within the next six months, that will allow him to demonstrate
his managerial skills and readiness for certification for Ad Hoc
Managerial announcements, then based on his certification, be given
priority consideration for his application.
By letter to the agency dated March 3, 2001, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency implement its terms. Specifically, complainant claimed that on
February 7, 2001, an employee in the agency's personnel office was unable
to locate complainant's name on a list of employees entitled to receive
priority consideration. Complainant also claimed that his first acting
managerial assignment occurred within eight months of the signing of the
agreement, although complainant contends that the settlement agreement
obligated the agency to assign him to an acting position "as soon as
possible within the next six months."
Complainant filed an appeal with the Commission after receiving no
determination from the agency regarding his breach claims. On appeal,
the Commission found that the agency substantially complied with provision
(A). The Commission remanded the matter identified in provision (B).
The Commission determined that the record did not reflect whether
complainant demonstrated managerial skills and readiness for certification
for Ad Hoc Managerial Assignments thus meriting priority consideration.
On remand, the agency was ordered to supplement the record with evidence
addressing complainant's entitlement to priority consideration based
upon a demonstration of managerial skills and readiness for certification
for Ad Hoc Managerial announcements, pursuant to provision (B). Siegel
v. Department of Treasury, EEOC Appeal No. 01A13835 (June 27, 2002).
The agency issued a new final decision on April 18, 2003, that is the
subject of the present appeal finding no breach of provision (B). The
agency noted that the Internal Revenue Service was directed to conduct
an inquiry and to submit a report regarding compliance with provision (B).
The agency found that an inquiry report reflected that during July 1999,
complainant was offered a one-week acting managerial assignment and that
in September 1999, complainant was given responsibility as the District
Electronic Research Coordinator, both within the six-month time frame
identified in provision (B). The agency further stated that the inquiry
report showed that complainant was offered an acting detail as Supervisor
of Exam Branch 3 from February 27, 2000 through June 17, 2000; and that
in October 2000, complainant was certified by management in the Management
Achievement Program, indicating his managerial skill and readiness.
With respect to complainant's priority consideration claim, the agency
stated that a review of the inquiry showed complainant was given priority
consideration for the position of Supervisory Internal Revenue Agent,
GS-512-14 (post of duty Baltimore, Maryland), announced under Vacancy
Announcement Number SP-01-164M. The agency stated that complainant
was not selected for the subject position because he lacked experience
working in Special Enforcement Programs (SEPs). According to the agency,
complainant's application was given full and fair consideration during
the selection process for the subject position and that he was no longer
entitled to further consideration in the Priority Consideration Program.
Furthermore, the agency stated that IRM 6.335.1.12.6(7), addresses
priority consideration in the following fashion:"An appropriate
vacancy is one for which the employee meets basis qualifications and
is a reasonable candidate. It should be at the same grade level and
generally in the same area of consideration as the position for which
proper consideration was lost...Priority consideration is granted once
for each time proper consideration was denied.."
On appeal, complainant restates the assertion that on February 7, 2001,
an employee in the agency's personnel office was unable to locate his
name on a list of employees entitled to receive priority consideration.
Furthermore, complainant states "I was not afforded the opportunity
(right) to be considered for positions that I was qualified for during
a time period when there were numerous positions available because of
the reorganization of the IRS."
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).
A review of the record persuades the Commission that the agency did not
breach provision (B). The Commission notes that the record contains
a copy of an August 27, 2001 memorandum from the Commissioner,
Small Business/Self-Employed (Commissioner) to the Acting Chief,
EEO and Diversity. Therein, the Commissioner stated that during the
inquiry of complainant's breach claims, complainant's manager stated
that complainant was offered a one-week acting managerial assignment
during July 1999; was given the responsibility of the District Electronic
Research Coordinator in September 1999; and was offered an acting detail
as Supervisor of Exam Branch 3 from February 27, 2000 to June 17, 2000.
The Commissioner also found that according to complainant's manager and
a named agency official, they certified complainant in the Management
Achievement Program in October 2000, which indicated his managerial skill
and readiness. Furthermore, the Commissioner stated that based upon a
letter from the Chief of Philadelphia Employment Branch, complainant's
application was given full and fair consideration during the selection
process for the position of Supervisory Internal Revenue Agent, GS-512-14.
The Commission determines that there is sufficient evidence of record
supporting the agency's finding of no breach of provision (B). The
agency's final decision finding that it did not breach provision (B)
the settlement agreement is therefore 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
June 3, 2004
__________________
Date