01A15404_r
04-30-2002
Leroy Thompson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Leroy Thompson v. Department of Veterans Affairs
01A15404
April 30, 2002
.
Leroy Thompson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A15404
Agency No. 18930
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 11, 2001, finding that it was in
compliance with the terms of the August 31, 1998 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that the agency
agrees to:
(2)(a) Offer complainant priority consideration. Priority consideration
will be offered for a position at an entry level Computer Specialist,
GS-334-7/9 within Information Resource Management Services (IRM) when the
next available vacancy occurs. Priority consideration means the selecting
official may select, or non-select the complainant before the position is
announced or after it is announced and other candidates are considered.
Priority consideration ensures that you will be fully considered for
the position before the other candidates, it does not guarantee selection.
In a letter received by the agency on June 26, 2001, complainant alleged
that the agency was in breach of the settlement agreement. In this
letter, complainant claimed that the agency failed to offer him priority
consideration per the settlement agreement.
In its July 11, 2001 decision, the agency concluded that it did not breach
the agreement. The agency noted that complainant previously filed an
allegation in July 2000, alleging that the August 31, 1998 agreement had
been breached. The agency noted that it previously determined that the
agreement had not been breached in an October 19, 2000 decision and that
the EEOC affirmed the agency's decision. In the present case, the agency
stated that complainant alleged that the agreement was breached when
he was non-selected for the position of Telecommunications Specialist,
GS-391-11. The agency stated that this position was announced on April
23, 1998, prior to the signing of the agreement. Further, the agency
noted that the agreement requires only that complainant be considered
for Computer Specialist, GS-334-7/9 positions.
On appeal, complainant states that the agency did not address his current
claim of breach. Complainant states that since signing the August 31,
1998 agreement, the position at issue has become available six times
and he has not been given consideration for any of these positions.
Complainant states that during the summer of 2000, January of 2001,
and the spring of 2001, several positions became available within IRM
Services and he claims that the agency refused to grant him priority
consideration for these positions.
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 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 present case, the Commission is unable to determine whether
the agency breached the August 31, 1998 agreement. We note that in
a previous decision Leroy Thompson v. Department of Veterans Affairs,
EEOC Appeal No. 01A10995 (October 22, 2001), we found that the agency
did not breach the August 31, 1998 agreement, when in June 2000 it did
not give complainant priority consideration for a Computer Specialist,
GS-7 position in Research Services. However, we also note that this
decision did not determine that the agency fully satisfied provision
(2)(a) of the agreement and therefore does not preclude a finding that
the agency subsequently breached the agreement.
The record reveals that in June 2001, complainant raised an allegation
that the agency failed to give him priority consideration pursuant to
the agreement. We note that in the present case, complainant raised
several instances when he claims he should have received priority
consideration, which were not addressed in the agency's final decision.
The record does not contain sufficient information to determine whether
complainant was given priority consideration for the selections at issue.
The Commission finds that complainant has not clearly set forth the
selections at issue, but that his breach claim is sufficiently precise to
indicate none of the selections at issue occurred before the settlement
agreement was entered into on August 31, 1998. The Commission shall
remand the matter so that the agency may: (1) contact complainant to
clarify the selections at issue; (2) investigate whether complainant
was given priority consideration for the selections at issue pursuant
to the settlement agreement; and (3) issue a new decision determining
whether the agency breached provision 2(a) of the settlement agreement.
Accordingly, the agency's decision that it did not breach the agreement
is VACATED and the matter is REMANDED for further processing in accordance
with the Order below.
ORDER
The agency shall take the following actions within 30 days of the date
this decision becomes final:
Hold a meeting with complainant to determine which positions complainant
claims he should have received priority consideration for pursuant to
the settlement agreement;
Provide documentation indicating whether provision (2)(a) of the
settlement agreement has been breached.
Issue a decision on whether the agency breached provision 2(a) of the
settlement agreement.
A copy of the decision must be submitted to the Compliance Officer,
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
April 30, 2002
__________________
Date