Lashaunda G.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionDec 5, 2017
0120172415 (E.E.O.C. Dec. 5, 2017)

0120172415

12-05-2017

Lashaunda G.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Lashaunda G.,1

Complainant,

v.

Jeff B. Sessions,

Attorney General,

Department of Justice

(Federal Bureau of Prisons),

Agency.

Appeal No. 0120172415

Agency No. BOP201501447

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated June 21, 2017, finding that it was in compliance with the terms of the 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.

BACKGROUND

At the time of events giving rise to this compliance action, Complainant worked as a Unit Secretary at the Agency's Metropolitan Detention Center facility in Los Angeles, California.

On April 5, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:

(6) The Agency agrees to give Complainant one opportunity for priority consideration for a Unit Secretary upward mobility program position with save pay and one opportunity for priority consideration for a Case Manager position located at MDC-Los Angeles for a period of three years. If Complainant is not on the Best Qualified list for the Unit Secretary vacancy pending at this execution, then the Agency will give Complainant two priority considerations for Case Manager instead of one. The parties understand that there must be a posted vacancy announcement on USAJOBS for a Case Manager vacancy located at MDC-Los Angeles. Complainant must properly apply for the vacancy and make the best qualified list to be considered for the vacancy. Further, priority consideration means that Complainant's application will be considered first for the position. Priority consideration does not guarantee Complainant will be selected;

(7) Priority consideration shall be given as follow: a) The Complainant's application packet will be submitted to the Agency's Selecting Official before the applications of the other applicants on the best-qualified list; b) If the Complainant is not selected at the time of her priority consideration, her name will be submitted to the Selecting Official again with the other applicants on the best qualified list;

(8) Complainant agrees that she will notify the Warden at MDC-Los Angeles in writing prior to the closing date of the vacancy that she has applied for the vacancy at MDC-Los Angeles within the three year time period and informing the Warden that Complainant is invoking priority consideration under the terms of this settlement agreement. If Complainant fails to give such written notification to the Warden prior to the closing date of the vacancy, Complainant waives her priority consideration for the vacancy;

(12) Complainant represents and warrants that she has read and reviewed this Settlement and Compromise Agreement, . . . and that she fully understands the terms of such Settlement and Compromise Agreement; and

(15) There are no other terms to this Agreement other than those expressly written here.

Complainant applied for the Case Manager position, announced under Vacancy Announcement GS-0101-09/11. She was not referred. The position was filled by a lateral transfer of another employee who was already a Case Manager who transferred to the location. Complainant states that she also applied for LOS-2017-005, which was posted and announced on November 16, 2016 at a 07/09 grade. Complainant was referred. The certificate expired on March 5, 2017. No selection was made.

On January 20, 2017, the Senior Counsel for the Agency's Employment Law Branch informed Complainant and her attorney, via e-mail, that the Warden "will give [Complainant] priority consideration for the Case Manager vacancy in accordance with the settlement agreement executed on April 5, 2016 even though [Complainant] did not comply with paragraph no. 8 of the settlement." The email also stated that "in the event a Case Manager selection cannot be made for this vacancy due to budgetary constraints, [Complainant's] priority consideration for this vacancy will not be counted as an opportunity for priority consideration."

By letter to the Agency dated May 5, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency announced two Case Manager positions, for which she applied, but the Agency did not afford Complainant priority consideration for either one of them.

Agency Decision

The Agency concluded that the "Bureau has met its obligation of compliance with the terms of this settlement agreement." The Agency reasoned that Complainant did not invoke priority consideration and Complainant did not apply for the first Case Manager vacancy (LOS-2016-0022) and that she was not eligible because it was open to "Reassignment Eligible [employees] only" and posted at the GS-09 / GS-11 level. The Agency stated that her eligibility for the opportunity for priority consideration would continue for the remainder of the three year period. This appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant states that the Agency's decision is factually erroneous. She states that she did apply for both positions. She was unfairly deemed not eligible for the GS-9, reassignment eligible only position. She states that she was a GS-8 at the time. She also argues that "it is not fair or reasonable that the staff member that [laterally] transferred to the position . . . is not here at this institution filling this job, but instead studying abroad in a foreign country." She also acknowledged that she was referred for consideration with regard to the second position at issue, but the Agency did not make any selection.

ANALYSIS

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, the Agreement provided for priority consideration for positions for which she is eligible. It did not guarantee the position and it did not address the situation where an agency decides to post an announcement, but limit the area of consideration to reinstatement eligible employees and then make a lateral assignment. She applied for one position for which she was deemed ineligible because of the way the Agency defined the area of consideration. She applied for a second position, was qualified and referred, but the Agency decided not to fill the position for unexplained reasons. For these reasons, we find that Complainant has shown the Agency has not yet given Complainant priority consideration, as of the date of this appeal.

The Agency conceded that Complainant's "eligibility for the opportunity for priority consideration for a subsequent Case Manager vacancy at MDC Los Angeles would continue for the remainder of the three year period."

Therefore, we disagree with the Agency's finding that it already "met its obligation of compliance." Specifically, we note that the Agreement requires that Complainant be provided priority consideration for a Case Manager position located at the MDC-Los Angeles for a period of three years or until such time as Complainant is selected for promotion at MDC-Los Angeles, transfers to another BOP facility or voluntarily separates from the BOP facility.

We find that the Agreement continues in place and that the Agency has not yet fulfilled its obligations under the terms of the Agreement.

We caution the Agency that we find it troubling that the Agency did not place Complainant for the Case Manager position for which she qualified and instead allowed the certificate to expire, without an explanation or proof as to its reasons. Those actions, however, are beyond the scope of the terms of the Agreement.

CONCLUSION

Accordingly, we find that Complainant did not show that the Agency breached the Agreement when it did not select her for the Case Manager positions, announced under vacancies LOS-2016-0022 and LOS-2017-005.

We MODIFY the Agency's final decision to AFFIRM for the reasons stated herein and to clarify that we find that the Agency has not yet met all of its obligations under the terms of the Agreement, which remains in effect until April 5, 2019. Complainant retains her right to raise a breach claim for non-compliance if she believes the Agency has failed to meet its obligations during the remaining term of this Agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

December 5, 2017

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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