01982353_r
05-20-1999
Millicent Marshall, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Millicent Marshall, )
Appellant, )
) Appeal No. 01982353
v. ) Agency No. I-89-5676
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
On February 6, 1998, appellant filed an appeal from a December 18,
1997 final agency decision wherein the agency determined that it was
not in breach of a settlement agreement. See 29 C.F.R. �1614.504.
The agency failed to provide a certified mail return receipt or any
other material capable of establishing the date when appellant received
the final agency decision. Accordingly, the Commission presumes that
appellant's appeal was filed within 30 days of appellant's receipt of the
agency's final decision. Accordingly, the appeal is accepted as timely.
See 29 C.F.R. �1614.402(a); EEOC Order No. 960.
Appellant and the agency entered into a settlement agreement on August
19, 1993, which provided, in relevant part, as follows:
2. In future selections for Immigration Examiner positions for which
Complainant is rated high enough to be within the number of selections
advertised (e.g., if six positions are advertised and Complainant is
rated within the top six positions by the ratings panel), the following
procedure will be used by [Official A] (or her successor). When
Official A makes inquiry to the Complainant's supervisors, Official A
will only ask about the Complainant's performance within the 12 months
immediately preceding the inquiry. For example, if Complainant applies
for a position as Immigration Examiner and Official A makes inquiries
about the Complainant on August 15, 1993, Official A will only ask about
Complainant's ability to deal with others in the period from August 16,
1992 to August 15, 1993. If Official A receives a favorable reply about
Complainant's dealings with the public, co-workers and supervisors,
then Official A will not exclude the Complainant from selection.
As an initial matter, the Commission notes that the present allegation
that the agency breached paragraph 2 of the agreement when she was not
selected for an Immigration Examiner position following her application
for Vacancy No. ER OC 93-48 was the subject of a prior final agency
decision (FAD-1). In FAD-1, the agency determined it had not breached
the settlement agreement and appellant appealed to the Commission.
Marshall v. U.S. Postal Service, EEOC Appeal No. 01944841 (February
16, 1995). The Commission was unable to determine whether paragraph
2 of the settlement agreement was breached. The Commission noted that
the record lacked any evidence regarding appellant's qualification for
the Immigration Examiner position; whether the agency gave appellant
priority consideration; whether the agency sought comments concerning
appellant's performance in the 12 months preceding her application for
the position; and where on the list of qualified candidates appellant
may have been placed. Accordingly, the Commission remanded the case to
the agency to produce evidence sufficient for the Commission to determine
whether the agency breached paragraph 2 of the settlement agreement.
Pursuant to the Commission's Order, the agency conducted an investigation
and prepared a Supplemental Report of Investigation (ROI). The ROI
concluded that appellant's qualification for the Immigration Examiner
position included a three-month detail to a special task force and a
three-month detail as a District Adjudication Officer/Examiner; that the
agency could not have given appellant priority consideration because she
was not on the selection certificates; that the agency could not have
sought comments about appellant's performance since she was not on the
selection certificates; and appellant was not rated high enough to be
on a selection certificate, but that her rating among all the applicants
was unknown.
The ROI contains Vacancy Announcement 93-48 for three Immigration Examiner
positions at GS-9/11. The ROI also contains a GS-9 List of Announced
Vacancy Applicants which reveals that appellant was one of 44 applicants
for the GS-9 position. A Memorandum, dated January 24, 1994, reveals that
the the number of candidates for the vacancy announcement was increased to
four candidates and that three candidates would be selected from the GS-11
list of candidates and one candidate from the GS-9 list of applicants.
The January 24, 1994 agency certification list for the GS-9 position
reveals that appellant was not among the 10 candidates certified for
the position nor was she one of the nine candidates on the certification
list for the GS-11 position. Also contained in the ROI is an April 26,
1994 letter to appellant notifying her that her score was not high enough
to make the certification list and that she was not selected.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance.
29 C.F.R. �1614.504(a). The complainant may request that the terms of
the settlement agreement be specifically implemented or request that the
complaint be reinstated for further processing from the point processing
ceased. Id.
EEOC Regulation 29 C.F.R. �1614.504(c) provides that allegations that
subsequent acts of discrimination violate a settlement agreement shall
be processed as separate complaints under �1614.106 rather than as
breach allegations.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (August 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). In reviewing settlement agreements to determine
if there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)
(citing Hyon v. U.S. 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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
Upon review, we find that the agency's decision was proper. Paragraph
2 specifically provides that appellant had to satisfy two conditions
before even being considered for selection for an Immigration Examiner
position: she first had to apply for a position as an Immigration Examiner
and once she applied, she had to receive a rating high enough to be
within the number of selections advertised. The record reveals that
appellant was one of several applicants for the Immigration Examiner
position for which there were four openings and that appellant was not
among the candidates certified for either the GS-9 or GS-11 positions.
Although appellant applied for the position, she failed to satisfy the
condition of receiving a high rating. The Commission has held that a
written contract is deemed to embody the entire agreement between the
parties. See Kennedy v. National Aeronautics & Space Administration,
EEOC Request No. 05920677 (November 27, 1992). Having failed to receive
a rating high enough to place her among the top four rated candidates,
the agency did not have to give appellant priority consideration or
seek comments regarding her performance as set forth in paragraph 2.
We find therefore that the agency was not in breach of paragraph 2.
To the extent that appellant is challenging the rating process itself and
asserting that she was more qualified than other applicants who received
a high rating and were certified, such an allegation should be processed
as a separate allegation of discrimination under 29 C.F.R. �1614.106
rather than under �1614.504. See 29 C.F.R. 1614.504(c). If appellant
has not received EEO counseling on such an allegation or has not filed
a complaint on such an allegation, then appellant may wish to contact
an EEO Counselor pursuant to �1614.105 to pursue such an allegation as
a separate allegation of discrimination.
Consistent with our discussion herein, the agency's final decision
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations