01A22252
03-24-2003
Alberta J. Dwivedi, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Alberta J. Dwivedi v. Department of Health and Human Services
01A22252
March 24, 2003
.
Alberta J. Dwivedi,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A22252
Agency No. 99-022-HCF
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 5, 2002, finding that it was in
compliance with the terms of the October 31, 2000 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) The agency agrees to provide the Complainant with one �Priority
Consideration� as defined in Article 26, Section 14 of the Master Labor
Agreement between the American Federation of Government Employees AFL-CIO
and the Health Care Financing Administration. Complainant may use this
priority consideration for any position of her choosing.
By letter to the agency dated March 1, 2002, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to properly grant her priority
consideration for a Supervisory Health Insurance Specialist position.
Complainant further alleged that she was �qualified for the job and should
have been selected for the job� but the selecting official improperly
used subjective criteria to evaluate her qualifications for the position.
Finally, complainant requested that she be placed into the Supervisory
Health Insurance Specialist position as the remedy for the alleged breach.
In its March 5, 2002 final decision, the agency concluded that it did not
breach the agreement. The agency determined that it provided complainant
with �priority consideration,� as provided in the agreement, but
complainant lacked the requisite knowledge and experience to be selected.
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).
In the instant case, the terms of the settlement agreement provide that
the agency will grant complainant �priority consideration� as defined
in Article 26, Section 14 of the Master Labor Agreement between the
American Federation of Government Employees AFL-CIO and the Health Care
Financing Administration. Article 26, Section 14 of the Master Labor
Agreement states an employee will be notified in writing by management
of her entitlement to each priority consideration. The labor agreement
further states that �prior to the evaluation of other applicants, the
name(s) of the employee(s) requesting to exercise priority consideration
will be referred to the selecting official. The selecting official will
make a determination on the request prior to evaluating other applicants.�
The record reveals that in a letter dated November 17, 2000, the agency
notified complainant that the terms of the settlement agreement entitled
her to one �priority consideration� for any posted GS-14 vacancy
for which she qualifies. The letter also apprized complainant of the
procedure for exercising her entitlement for priority consideration. The
record reveals that complainant requested that she be granted priority
consideration for the position of Supervisory Health Insurance Specialist,
GS-107-14. The record further reveals that the selecting official
reviewed complainant's application package and held an interview with
her before any other candidates for the position. In a letter dated
January 23, 2002, the selecting official documented his reasons for not
selecting complainant, and requested that agency management allow him to
interview employees that are on the best-qualified list for the position.
The selecting official stated that during the job interview, complainant
failed to demonstrate significant experience or detailed knowledge of
automated tools in project planning, contract budgeting techniques,
mid-tier and/or web development arenas, and the Systems Development
Life Cycle (SDLC) process. The selecting official contended that the
position required that the selectee possess experience and knowledge of
�web techniques� and other current technologies, which complainant lacked.
Upon review of the matter, we determine that the record documents that
the selecting official gave bona fide consideration to complainant's
suitability for the Supervisory Health Insurance Specialist position prior
to considering other applicants. We therefore find that complainant
was granted priority consideration as provided by the terms of the
agreement. We note that the terms of the agreement did not guarantee
that complainant would be selected for the position, only that she would
be granted priority consideration. Consequently, we find no breach of
the settlement agreement.
Accordingly, the agency's decision was proper and is hereby 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
__March 24, 2003________________
Date