01976113
02-24-1999
Robert A. DePalma, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Robert A. DePalma v. Department of Veterans Affairs
01976113
February 24, 1999
Robert A. DePalma, )
Appellant, )
)
v. ) Appeal No. 01976113
) Agency No. 95-1557
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. �1614.402(a); EEOC Order No. 960, as amended.
The record reflects that appellant filed a formal complaint on May 5,
1995, regarding his non-selection for an agency position in March 1995
(Complaint No. 95-1557). The record further reflects that appellant's
complaint was accepted for investigation and was scheduled for a hearing
before an Administrative Judge.
On February 7, 1996, appellant and the agency settled the complaint.
The settlement agreement contained, in pertinent part, the following
provision:
2. In return for [withdrawal of appellant's complaint], the Department
of Veterans Affairs agrees to:
Give [appellant] priority consideration for the next two vacant
WG-10 Pipefitter positions at the Cleveland VA Medical Center.
Priority consideration means the selecting official may consider the
complainant before the position is announced or after it is announced.
Priority consideration ensures that you will be fully considered for the
position before the other candidates. It does not guarantee selection.
It is understood that [appellant] must meet the qualifications for the
position to which this consideration is extended. If he is non-selected,
the agency will provide written justification in support of the same.
Priority consideration will be effective upon endorsement until the next
two WG-10, Pipefitter positions are filled.
On June 10, 1997, appellant alleged breach of the settlement agreement
and requested reinstatement of the complaint from the point where
processing ceased. Appellant's allegation of settlement breach was
initially raised before an Administrative Judge who was scheduled to
hold appellant's hearing. Appellant alleged that the agency gave him no
consideration for the next two vacant WG10 Pipefitter positions that arose
after the settlement agreement went into effect: one position was listed
in Announcement No. CM-7-0008, dated November 13, 1996; and the second
position was listed under Announcement No. CM-7-0019, dated November 18,
1996. Appellant alleged that he learned, only after persistent inquiries,
that the agency had secretly placed two new persons into these positions.
By letter to an agency EEO Manager, dated July 9, 1997, an agency Human
Resources Chief stated that the positions discussed in appellant's
allegation of settlement breach were not announced; that selections were
made from the Office of Personnel Management's (OPM) List of Eligibles;
and that priority considerations cannot be applied "under the guidelines
of this recruitment source."
On September 25, 1997, the agency issued a final decision, finding no
breach of the settlement agreement of February 7, 1996. The agency
noted that appellant submitted an application to the OPM for the
Pipefitter position, and that he was certified as a candidate for the
Pipefitter WG-4204-10 position. The agency determined, however, that
the certification was canceled because OPM did not consider the fact that
applicants were required to have specific knowledge of "steam operations."
The agency further determined that appellant was not certified as eligible
by OPM on the second certificate and that as a consequence, he could not
have received priority consideration for the two positions addressed in
his allegation of settlement breach. The agency concluded that although
it determined that no breach had occurred, appellant is still entitled
to priority consideration for the next two vacant Pipefitter positions
for which he is qualified.
On appeal, appellant argues that the settlement agreement makes
no distinction between vacant positions that are "announced and/or
unannounced, OPM and/or non OPM." Appellant argues that the settlement
agreement contains no exception for OPM announced positions and that
the agency failed to reference a single guideline in support of its
contention. Appellant argues that no distinctions of any kind are made
with respect to available positions, other than that he be qualified for
the position. Appellant further argues that the agency determination
that appellant's OPM certification was canceled because applicants were
required to have specific knowledge of "steam operations" is conclusory.
Specifically, appellant argues that he has no evidence that the
certificate was canceled, that OPM was ever required to consider "steam
operations," or that "steam operations" played a measurable role in the
performance of the position. Appellant also argues that he was never
notified by the agency of his non-selection for the Pipefitter positions,
as required by the settlement agreement; and that he learned of his
non-selection only by finding other parties occupying the Pipefitter
positions that are the subject of his breach allegation.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date 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.
In interpreting settlement agreements, the Commission has applied the
contract principle known as the "plain meaning rule," which holds that
where a writing is unambiguous on its face, its meaning is determined from
the four corners of the instrument without resort to extrinsic evidence.
Smith v. Defense Logistics Agency, EEOC Appeal No. 01913570 (December 2,
1991).
Our review of the settlement agreement reveals that under the terms of
the agreement, appellant was to receive priority consideration for the
next two vacant WG-10 Pipefitter positions that arose after the agreement
went into effect. When two WG-10 Pipefitter positions became available,
appellant was not given priority consideration. Applying the "plain
meaning" rule to the settlement agreement, we find that the agency's
obligation to give appellant priority consideration for the "next
two vacant WG-10 Pipefitter positions" was not limited by selections
from OPM Certificates of Eligibles. If the agency had desired such
limitations, it should have bargained to have such limitations included
in the agreement. See Jenkins-Nye v. General Services Administration,
EEOC Appeal No. 019851903 (March 4, 1987). The settlement agreement
provided that appellant would be given priority consideration for the
next two WG-10 Pipefitter positions for which he was qualified that
arose after the settlement agreement went into effect. We find that two
positions became available in November 1996, but the agency failed to give
appellant priority consideration for the positions. The agency should
have given appellant priority consideration for the subject positions
prior to going to OPM for a list of eligibles. Accordingly, we find
that the agency breached the settlement agreement of February 7, 1996.
EEOC Regulation 29 C.F.R. �1614.504(c) provides that in the case of
noncompliance with a settlement agreement, the Commission may order
compliance with the terms of the settlement agreement or reinstatement
of the complaint. Under the circumstances of this case, the Commission
will exercise its discretion to order reinstatement of the complaint from
the point where processing ceased, in accordance with the ORDER below.
ORDER
Withing thirty days of the date that this decision becomes final, the
agency shall request the assignment of an Administrative Judge to conduct
a hearing on appellant's May 5, 1995 complaint. A copy of the agency's
request must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations