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