Gustav Siegel, Complainant,v.John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionJun 3, 2004
01a33547 (E.E.O.C. Jun. 3, 2004)

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