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