0120123108
03-05-2013
Samuel Weddle, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Samuel Weddle,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120123108
Agency No. NPS-2008-0249
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated July 17, 2012, finding that it was in compliance with the terms of a May 28, 2009 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Park Ranger (Management Assistant), GS-12, Step 10, at the Agency's Chickamauga and Chattanooga National Military Park in Fort Ogelthorpe, Georgia. He had a Bachelor of Science degree in Forestry and Wildlife Management from Virginia Polytechnic Institute (Virginia Tech). He had worked for the Agency for many years.
On May 28, 2009, Complainant and the Agency entered into a settlement agreement to resolve a matter which Complainant pursued through the EEO complaint process.
The May 28, 2009 settlement agreement provided, in pertinent part, that:
(F) The Agency agrees to give Complainant priority consideration for future Park Superintendent and Deputy Park Superintendent positions within the Southeast Region for three years. Priority consideration does not mean that Complainant must be selected for any Park and Deputy Park Superintendent positions. H he agrees to contact the Southeast Regional Human Resources Office to inform the Agency that he is entitled to priority consideration for those positions.1
By letters to the Agency dated October 10, 2010, and February 10, 2011, Complainant alleged breach of provision (F) asserting the Agency did not give him priority consideration for a Park Superintendant position in Oneida, Tennessee, and the position of Park Superintendent within the Southeast Region at Cape Lookout National Seashore in North Carolina. In both cases, Complainant requests that he be immediately assigned to the position with back pay.
The record reflects that the Agency did not respond to Complainant's breach allegations, failing to issue a final determination on his breach claims as required by 29 C.F.R. � 1614.504.
Complainant filed a timely appeal with the Commission when the Agency failed to respond to his notice that it was not in compliance with provision (F) of the May 28, 2009 settlement agreement. On March 28, 2012, the Commission remanded this matter for a supplemental investigation to determine whether the Agency breached provision (F) of the settlement agreement. Weddle v. Department of the Interior, EEOC Appeal No. 0120110904 (March 28, 2012).
On July 17, 2012, following the supplemental investigation ordered by EEOC, the Agency issued the instant final decision, finding no breach of provision (F). The Agency determined that it complied with provision (F) of the instant agreement.
The record shows that Complainant timely applied and was found to be qualified for consideration for the position of Superintendent, GS-13/14, of Big South Fork National Recreation Area. In accordance with provision (F) of the settlement agreement, he notified the Southeast Regional Human Resources office of his entitlement to priority consideration for the position. The Agency provided evidence in the form of a Priority Candidate selection certificate form and copies of emails that Human Resources contacted the selecting official and advised him of Complainant's entitlement to priority consideration. The selection certificate, signed by the selecting official, indicates that the selecting official considered Complainant's application prior to receiving other applications, but decided not to select him. The written justification for the non-selection, prepared by the selecting official, states that:
I determined that this applicant had average skills. It is likely other significantly higher qualified applicants would have applied. Having experience in reviewing numerous applications for similar positions, it was clear the applicant lacked the diverse management experience commonly found in applicants for GS-14 superintendent positions.
The record also shows that Complainant's application was later considered during the competitive process with other candidates. After his application was rated and he received a score of 92, he was ranked 9th out of the ten GS-13 eligible candidates. He was not interviewed and not selected because he was below the cut-off score of 96 for the best qualified list.
Complainant also applied for the position of Superintendent, GS-13/14, at Cape Lookout National Seashore, and again notified the Agency of his entitlement to priority consideration. Again, the record contains the Priority Candidate selection certificate verifying that the selecting official (a different official from the previous one) also considered Complainant prior to considering other candidates but did not select him. An email from the selecting official also verifies that she provided Complainant with priority consideration but did not select him so went ahead with the competitive selection process. Again, Complainant was later considered during the competitive selection process, but another candidate was selected.
Based on this evidence, the Agency issued its final decision concluding it had complied with provision (F) of the settlement agreement. The instant appeal followed. On appeal, Complainant argues that the selecting officials did not understand or correctly apply the complainant's priority consideration. Complainant asserts that it was improper for the selecting official not select Complainant in favor of some unknown candidate who they presumed would have better credentials, arguing, "[t]his was not priority consideration, it was nothing."
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
In the instant case, we find that the evidence of record supports the Agency's determination that it complied with provision (F) of the settlement agreement. Provision (F) provides for an affirmative Agency obligation to give Complainant priority consideration for future Park Superintendent and Deputy Park Superintendent positions within the Southeast Region for three years. The agreement also affirmatively states that priority consideration "does not mean that Complainant must be selected" for any particular position. The record contains adequate documentation verifying that Complainant's application was forwarded to the two selecting officials at issue to consider prior to receipt of other applications. In both instances, the selecting officials chose not to select Complainant and later proceeded with the competitive selection process, where Complainant was again considered but another candidate was selected. This process appears in compliance with provision (F) of the settlement agreement. The parties could have, but did not, provide a specific definition for "priority consideration" in the settlement agreement. Complainant's brief on appeal defines priority consideration to mean that Complainant was entitled to receive "bona fide consideration on his own merit, without competition, and other potential candidates." He has not established that this did not occur.
The Agency's finding of no breach of provision (F) of the May 28, 2009 settlement agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 5, 2013
__________________
Date
1 The settlement agreement also provides for the Agency to pay Complainant's attorney in the amount of $7,000.00 for attorney's fees and costs; allow Complainant to serve as acting Superintendent at any park in the Southeast Region on one or more acting assignments not to exceed ninety (90) days in total; allow Complainant to shadow the Superintendents at one of the Agency's parks; and allow Complainant and the Chickamauga and Chattanooga National Military Park's Superintendent or successor to develop an Individual Development Plan for Complainant. These provisions are not at issue in the instant case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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