01996856
02-27-2001
Alfred C. Holloway, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alfred C. Holloway v. Department of Veterans Affairs
01996856
February 27, 2001
.
Alfred C. Holloway,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996856
Agency No. 97-2305
DECISION
Complainant filed an appeal with this Commission<1> from an agency
decision, dated July 13, 2000, acknowledging that it was not in compliance
with the terms of the May 27, 1998 settlement agreement into which the
parties entered.<2> 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:
The Agency will provide Complainant priority consideration for any GS-5
equivalent or above position that is posted for the next 24 months. If no
position opens for which Complainant is qualified and/or Complainant is
interested in over the next 24 months Complainant will have the option
of either having a hearing or extending this Agreement for an additional
24 months.
(2) It is understood and agreed that it is not a guarantee that the
Complainant will be chosen for the position. However, he will be
considered for the position before anyone else. A legitimate business
reason must be given by the selecting official for not placing Complainant
in the position. If the Complainant does not believe good faith was
used in his non-selection, he can call the EEOC Judge for assistance.
Additionally Complainant can reopen case number 120-98-9333 and or file
an Enforcement Action.
By letter to the agency dated August 6, 1999, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that the agency failed to provide him priority consideration,
as provided in paragraphs 1 and 2 of the agreement.
In its July 13, 2000 decision, the agency concluded that it had breached
the agreement. According to the agency, its inquiry showed that
complainant was not given priority consideration for the position of
Medical Supply Technician, GS- 622-5/6. When asked whether complainant
was given priority consideration, the Regional Counsel Attorney indicated
that he was not, due to the qualification and time-in-grade requirements
for GS-6. The Regional Counsel Attorney explained that as a GS-4,
complainant would not be able to meet the fifty-two weeks at GS-5 level
required for GS-6. No reason was given why he did not receive priority
consideration for the GS-5 level. Further, the agency determined that
complainant had over nine years of specialized experience as Medical
Supply Technician at the GS-4 level, thereby meeting the time-in-grade
requirement. No justification was given regarding why complainant was not
referred ahead of and separate from the other candidates. Therefore,
the agency concluded that complainant could request that the agreement
be specifically implemented or that his complaint be reinstated.
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 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).
The agency clearly breached the agreement when complainant was not
given priority consideration. In its decision, the agency notes that if
complainant elects specific implementation, �he should receive priority
consideration for two years from the date of his election.� Complainant
argues on appeal, however, that he is entitled to placement in the GS-5
position retroactively, which would now be at the GS-6 level under the
terms of the announcement.
Under EEOC Regulation, the remedies available for breach of the agreement
are specific performance of the agreement or reinstatement of the
complainant's underlying complaint. See 29 C.F.R. � 1614.504(a).
Complainant cannot obtain the back pay and position he requested
on appeal. See Metts v. Department of Veterans Affairs, EEOC Request
No. 05970935 (June 11, 1998)(In breach finding for failure to provide
priority consideration, promotion, back pay, and increase in salary not
available.) Because complainant's requested remedy is unavailable, as
noted above, we find that complainant should be given the opportunity to
choose future priority consideration, or reinstatement of his complaint
as offered in the agency decision. Further, because complainant was
a prevailing party, he is entitled to attorney's fees pursuant to the
Order below.
Accordingly, the agency's finding of breach is AFFIRMED.
ORDER
The agency is Ordered to perform the following:
1. Within fifteen days of the date this decision becomes final, the
agency must notify complainant of his right to choose either twenty-four
months of priority consideration or reinstatement of his complaint.
This notification must inform complainant that choosing reinstatement
of his underlying complaint will end all priority considerations.
The agency must allow complainant at least thirty days to respond to
this notice from the date he receives it.
2. If complainant requests reinstatement of the settled complaint,
then the agency must begin processing the underlying complaint from the
point processing ceased and notify complainant of the resumed processing.
A copy of the notice requesting that complainant choose either specific
performance or reinstatement of his complaint must be sent to the
Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
February 27, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant filed his appeal on September 8, 1999, stating that he
had received no agency response to his August 6, 1999 allegation of
settlement breach. In response, the agency asserted that the appeal was
premature, as an agency decision had not yet been issued. Subsequently,
on July 13, 2000, a final agency decision was issued on the matter.
Therefore, although initially premature, an agency decision has been
issued and the Commission finds the matter ripe for adjudication.