Karla Macias, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionSep 19, 2005
01a53245 (E.E.O.C. Sep. 19, 2005)

01a53245

09-19-2005

Karla Macias, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Karla Macias v. Department of Homeland Security

01A53245

September 19, 2005

.

Karla Macias,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A53245

Agency No. HS-05-0665

Hearing No. 360-2003-8339X

DECISION

Complainant filed an appeal with this Commission concerning compliance

with the terms of a September 30, 2004 settlement agreement. See 29

C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The September 30, 2004 settlement agreement provided, in pertinent

part, that:

The Agency agrees to provide Complainant with a priority consideration

for a period of eighteen months for the position of Adjudications Officer,

GS-1801, limited to positions opening in El Paso, Texas.

By appeal letter to the Commission dated March 23, 2005, complainant

claims breach and requested that the agency specifically implement its

terms. Complainant states that in response to a request for information

from the agency, she received a reply (submitted on appeal) indicating

that she �was referred for priority consideration to the Adjudications

Officer, GS-1801-12 position on February 22, 2005.� Complainant states

that the response indicated that complainant was considered for the

position but that she was not selected. The response also indicated

that no selection was made from the list (where complainant was the

only candidate) because complainant had �insufficient experience in

adjudicating complex applications and petitions.� Complainant's appeal

also claims that �her selection was waived� by the selecting official

because of her national origin, sex, and prior EEO activity.

In response to complainant's appeal, the agency first asserts that the

appeal should be dismissed because complainant never timely notified the

agency of the alleged breach as required by the agreement, and that it

first received notice at the time of complainant's appeal. The agency

also contends that no breach has occurred under the settlement agreement,

because complainant was provided a priority consideration referral as

specified in the agreement. To support its contention, the agency notes

that complainant admits on appeal she was given priority consideration.

The agency also submits an affidavit from the selecting official stating

that �the first selection certificate reviewed was [complainant's]

priority consideration selection certificate,� and that he �reviewed

and considered [complainant] as a candidate prior to considering any

other candidate.�

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).

As an initial matter, we note that the record indicates that complainant

failed to provide the agency notice of her alleged breach as dictated

under EEOC Regulation 29 C.F.R. � 1614.504, and that the agency

consequently has not issued a final determination on complainant's breach

claim. We find, however, that the parties' submissions on appeal provide

sufficient information for the record to make a determination as to

whether the agency breached the September 30, 2004 settlement agreement.

In the instant case, complainant failed to show that the agency breached

the settlement agreement. The terms of the settlement agreement

require that the agency provide complainant with priority consideration

for a period of eighteen months for the position of Adjudications

Officer, GS-1801. The record reflects that the agency provided priority

consideration to complainant for a GS-1801-12 position; but that after

receiving priority consideration, complainant was not chosen for the

position. We find nothing in the instant settlement agreement mandating

complainant's selection. The agency fulfilled its obligation under the

settlement agreement by providing complaint priority consideration.

Moreover, EEOC Regulation 29 C.F.R. � 1614.504(c) states that claims

of breach that subsequent acts of discrimination violate a settlement

agreement shall be processed as separate complaints. We find that

complainant's claim on appeal that her selection was �waived� because

of her national origin, sex, and in reprisal for prior EEO activity,

constitutes a claim of a subsequent act of discrimination, and must be

processed as a separate complaint.

Accordingly, we find no agency breach of the parties' September 30,

2004 settlement agreement.

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

September 19, 2005

__________________

Date