Monteze Jaggers, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 11, 2001
01A20178_r (E.E.O.C. Dec. 11, 2001)

01A20178_r

12-11-2001

Monteze Jaggers, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Monteze Jaggers v. Department of the Army

01A20178

December 11, 2001

.

Monteze Jaggers,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A20178

Agency No. AVKCFO9610H0310

DECISION

Complainant timely appealed the agency's decision dated July 24,

2001, which concluded that the agency had not breached the settlement

agreement between the parties. On July 22, 1999, the parties resolved

complainant's complaints by entering into a settlement agreement which

provided, in pertinent part, that complainant would receive the following:

3(a) Provide the complainant Priority Placement to the first available

GS-13 position for which she is fully qualified for within the San

Francisco District within one year of signature of this agreement.

This provision excludes a GS-13 position within the Contracting Division,

San Francisco District. Complainant's pay will be calculated using the

highest previous rate.

EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased. The agency shall resolve the matter and

respond to the complainant, in writing. If the agency has not responded

to the complainant, in writing, or if the complainant is not satisfied

with the agency's attempt to resolve the matter, the complainant may

appeal to the Commission for a determination as to whether the agency

has complied with the terms of the settlement agreement or final decision.

The Commission has held that settlement agreements are contracts between

the complainant and the agency and it is the intent of the parties

as expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

By letter dated October 25, 2000, complainant alleged that the agency

breached the settlement agreement. Specifically, complainant alleges that

the agency is in breach because a year has passed since the signing of

the settlement agreement, and she has not been placed in a GS-13 position.

The agency issued a final decision on January 29, 2001, finding no breach

of the settlement agreement. Complainant appealed that decision and

the Commission issued a decision on May 31, 2001, vacating the agency

decision. Jaggers v. Department of the Army, EEOC Appeal No. 01A12306

(May 31, 2001). The May 31, 2001 decision ordered, in pertinent part,

the following:

The agency shall conduct a supplemental investigation by providing in the

record evidence which demonstrates either (a) that complainant received

bona fide priority consideration by the selecting official for the first

available GS-13 position for which complainant was qualified within the

San Francisco District Office within one year of signing the settlement

agreement of July 22, 1999, or (b) that no such positions were available

during this time period. The supplemental investigation shall include,

if applicable, documentation of all available job listings for GS-13

vacancies in the San Francisco District for July 22, 1999 through July

22, 2000. Based on the foregoing information, the agency, shall issue

a final agency decision and/or notify complainant that the agency is

reinstating her complaint for further processing from the point that

processing ceased.

The agency, on July 24, 2001, issued a second decision, again finding no

breach of the settlement agreement. Along with the decision, the agency

supplemented the record with every available job listing during the time

in question. The agency found that complainant was not qualified for any

of the GS-13 vacancies, and was therefore, not in breach of the settlement

agreement. Complainant appeals from the July 24, 2001 decision.

Complainant argues that the agency is in breach of the settlement

agreement because �the available positions compared to my qualifications

have not been identified� by the agency. Complainant does not indicate

which of the hundreds of job listings she thinks she was qualified for

and not considered. Moreover, the record contains a statement from the

Personnel Management Specialist, date June 28, 2001, which states that

�there were no available GS-13 positions in the San Francisco District

for which [complainant] was qualified.� We find that complainant has

failed to show breach of the settlement agreement. The agency's decision

finding no breach of the settlement agreement is 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

December 11, 2001

__________________

Date