Alberta J. Dwivedi, Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMar 24, 2003
01A22252 (E.E.O.C. Mar. 24, 2003)

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01A22252

03-24-2003

Alberta J. Dwivedi, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.


Alberta J. Dwivedi v. Department of Health and Human Services

01A22252

March 24, 2003

.

Alberta J. Dwivedi,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01A22252

Agency No. 99-022-HCF

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated March 5, 2002, finding that it was in

compliance with the terms of the October 31, 2000 settlement agreement

into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �

1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1) The agency agrees to provide the Complainant with one �Priority

Consideration� as defined in Article 26, Section 14 of the Master Labor

Agreement between the American Federation of Government Employees AFL-CIO

and the Health Care Financing Administration. Complainant may use this

priority consideration for any position of her choosing.

By letter to the agency dated March 1, 2002, complainant alleged that

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

complainant alleged that the agency failed to properly grant her priority

consideration for a Supervisory Health Insurance Specialist position.

Complainant further alleged that she was �qualified for the job and should

have been selected for the job� but the selecting official improperly

used subjective criteria to evaluate her qualifications for the position.

Finally, complainant requested that she be placed into the Supervisory

Health Insurance Specialist position as the remedy for the alleged breach.

In its March 5, 2002 final decision, the agency concluded that it did not

breach the agreement. The agency determined that it provided complainant

with �priority consideration,� as provided in the agreement, but

complainant lacked the requisite knowledge and experience to be selected.

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 terms of the settlement agreement provide that

the agency will grant complainant �priority consideration� as defined

in Article 26, Section 14 of the Master Labor Agreement between the

American Federation of Government Employees AFL-CIO and the Health Care

Financing Administration. Article 26, Section 14 of the Master Labor

Agreement states an employee will be notified in writing by management

of her entitlement to each priority consideration. The labor agreement

further states that �prior to the evaluation of other applicants, the

name(s) of the employee(s) requesting to exercise priority consideration

will be referred to the selecting official. The selecting official will

make a determination on the request prior to evaluating other applicants.�

The record reveals that in a letter dated November 17, 2000, the agency

notified complainant that the terms of the settlement agreement entitled

her to one �priority consideration� for any posted GS-14 vacancy

for which she qualifies. The letter also apprized complainant of the

procedure for exercising her entitlement for priority consideration. The

record reveals that complainant requested that she be granted priority

consideration for the position of Supervisory Health Insurance Specialist,

GS-107-14. The record further reveals that the selecting official

reviewed complainant's application package and held an interview with

her before any other candidates for the position. In a letter dated

January 23, 2002, the selecting official documented his reasons for not

selecting complainant, and requested that agency management allow him to

interview employees that are on the best-qualified list for the position.

The selecting official stated that during the job interview, complainant

failed to demonstrate significant experience or detailed knowledge of

automated tools in project planning, contract budgeting techniques,

mid-tier and/or web development arenas, and the Systems Development

Life Cycle (SDLC) process. The selecting official contended that the

position required that the selectee possess experience and knowledge of

�web techniques� and other current technologies, which complainant lacked.

Upon review of the matter, we determine that the record documents that

the selecting official gave bona fide consideration to complainant's

suitability for the Supervisory Health Insurance Specialist position prior

to considering other applicants. We therefore find that complainant

was granted priority consideration as provided by the terms of the

agreement. We note that the terms of the agreement did not guarantee

that complainant would be selected for the position, only that she would

be granted priority consideration. Consequently, we find no breach of

the settlement agreement.

Accordingly, the agency's decision was proper and is hereby 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

__March 24, 2003________________

Date