Linda C. Gross, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Appeal No. 01A34109 Agency No. DFAS-IN-PSO-01-014

Equal Employment Opportunity CommissionDec 30, 2003
01A34109_r (E.E.O.C. Dec. 30, 2003)

01A34109_r

12-30-2003

Linda C. Gross, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Appeal No. 01A34109 Agency No. DFAS-IN-PSO-01-014


Linda C. Gross v. Department of Defense (Defense Finance & Accounting

Service)

01A34109

December 30, 2003

.

Linda C. Gross,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Appeal No. 01A34109

Agency No. DFAS-IN-PSO-01-014

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated May 27, 2003, finding that it was in

compliance with the terms of the May 14, 2002 settlement agreement into

which the parties entered.

The settlement agreement provided, in pertinent part, that:

The Agency agrees to:

Give priority consideration to the Complainant for the first GS-510-7

position vacancy, with promotion potential, that is being filled through

the Delegated Examining Unit (DEU) in Kansas City.

The priority consideration will be for any site in which a position

vacancy for GS 510-7, with promotion potential, that is being filled

through the Delegated Examining Unit in Kansas City and will be valid

for one year from the date of this agreement or until the Complainant

declines an offered position or is selected for a position, whichever

occurs first.

By letter to the agency dated February 24, 2003, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that the agency failed to fulfill the priority

consideration requirements of the settlement agreement.

In its May 27, 2003 decision, the agency concluded that no breach of the

settlement agreement occurred. The agency determined that complainant's

resume was forwarded to DFAS-Cleveland for priority consideration for

an Accountant, GS 510-7 position, with full performance level of GS-11.

The agency further found that this was the first position matching the

criteria of the settlement agreement to be filled by the DEU since it was

signed.<1> The agency concluded that complainant was informed that she

was not selected for the position and nothing in the settlement agreement

provided that complainant must be given a reason for her non-selection.

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 Commission finds that on January 6, 2003,

the agency properly forwarded complainant's resume for priority

consideration for the Accountant position. By letter dated January 28,

2003, complainant was informed that she was not selected for the position

and that the position was being opened to competition.

"Priority consideration" generally requires the agency to consider

the employee for a position before referring any other candidate to

the selecting official for consideration. See Johnson v. Department of

Health and Human Services, EEOC Appeal No. 01941916 (December 20, 1994),

req. for recons. den., EEOC Request No. 05950331 (March 21, 1996). There

is no indication in the record as to why complainant was not selected

for the Accountant position via priority consideration. When granted

priority consideration, an individual is entitled to the position unless

the agency can demonstrate a permissible reason for the non-selection.

See Pakele v. Department of the Air Force, EEOC Request No. 05931008 (July

7, 1994). In the instant matter, no reason at all has been provided.

There are no statements in the record from the selecting official as to

why complainant was not selected. Therefore, the Commission shall remand

the matter so that the agency may supplement the record with evidence

showing why complainant was not selected for the Accountant position.

The agency shall thereafter determine whether it has complied with the

priority consideration provision of the settlement agreement.

Accordingly, the agency's finding that it has not breached the May 14,

2002 settlement agreement is VACATED, and the matter is REMANDED to the

agency for a supplemental investigation as provided below.

ORDER

Within 30 days of the date this decision becomes final, the agency shall:

1. Place into the record an affidavit from the selecting official

explaining the reasons for not selecting complainant as the priority

consideration candidate for the Accountant, GS 510-7 position.

Issue a new decision as to whether the agency has complied with

the priority consideration provisions of the May 14, 2002 settlement

agreement. A copy of the decision must be sent 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

December 30, 2003

__________________

Date

1On appeal, the agency determined that this

was the only position filled by the DEU during applicable time frame

that met the settlement agreement's criteria.