Delia H. Reyes, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency),) Agency.

Equal Employment Opportunity CommissionJan 12, 1999
01971421 (E.E.O.C. Jan. 12, 1999)

01971421

01-12-1999

Delia H. Reyes, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency),) Agency.


Delia H. Reyes v. Department of Defense

01971421

January 12, 1999

Delia H. Reyes, )

Appellant, )

)

v. ) Appeal No. 01971421

) Agency No. 95DCMW40003

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Commissary Agency),)

Agency. )

______________________________)

DECISION

On December 3, 1996, appellant filed a timely appeal with this

Commission from a November 4, 1996 final agency decision (FAD) finding

that the agency was in compliance with the terms of the September 21,

1995 settlement agreement into which the parties entered. See 29

C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.

The settlement agreement provided, in pertinent part, that:

(2) In exchange for the promises of [appellant] in paragraph 1 of this

agreement, the Agency agrees to:

Give [appellant] Priority Consideration for the next Permanent Parttime

(sic) GS-2019-03 Sales Store Checker position (Checker position) at

[appellant's work location].

By letter to the agency dated June 12, 1996, appellant alleged that the

agency was in breach of the settlement agreement because it failed to

give her priority consideration for a Checker position vacancy which was

awarded to another individual. Appellant alleged that on May 29, 1996,

she discovered that the other individual was selected for the Checker

position. Appellant requested "that the terms of the original complaint

[] be reinstated for further processing from the point processing

ceased."

In a memorandum dated June 20, 1996, the agency first noted that

"priority consideration" did not mean "priority placement." The

agency also concluded that in September 1995, appellant's supervisor

did not want to convert appellant's work schedule to part-time because

of purported attendance problems appellant had at that time. Further,

the agency determined that no permanent part-time Checker positions were

filled at appellant's work location from October 1995, until May 1996,

and that the requests for the recent fills were submitted prior to the

date of the settlement agreement. Finally, the memorandum suggested

that the new hires were selected pursuant to a new servicing arrangement

whereby the supervisor does not make the selections and does not know who

will be selected to fill the vacant positions. Recognizing that this

appeared like non-compliance, the agency noted that effective July 7,

1996, appellant's work schedule would be changed from intermittent to

part-time.

On October 15, 1996, appellant wrote a second letter to the agency

concerning her complaint. Appellant acknowledged that she was made

a "24-hour part-time" on July 7, 1996, but asserted that the agency

nonetheless "reneged on the mediation agreement and the discrimination

is still alive and well [at appellant's work location]."

In its November 4, 1996 FAD, the agency concluded, without comment,

that the terms and conditions of the settlement agreement were met,

and denied appellant's request for further processing of her complaint.

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).

In the instant case, the settlement agreement provided that appellant

would receive priority consideration for the next available Checker

position. The Commission has previously interpreted the phrase "priority

consideration" as follows:

Priority consideration is commonly understood to mean that appellant

must be considered before any formal action to recruit for the vacancy,

and must be give[n] bona fide consideration on her own merit, without

competition with other potential candidates. Priority consideration does

not guarantee selection ...

Bishop v. Department of Transportation, EEOC Request No. 05910148

(Apr. 10, 1991) (citation omitted).

The record does not show when the next available Checker positions became

available at appellant's work location. The agency has also not shown

whether appellant was given priority consideration as described in Bishop.

There is no evidence in the record, apart from the agency's assertions

in its November 4, 1996 decision, that appellant was considered for

the position and was given bona fide consideration on her own merit

without competition with other potential candidates. The Commission

notes, however, that the fact that the new Checker positions were filled

pursuant to a new servicing arrangement, does not absolve the agency of

its obligations under the agreement.

However, pursuant to 29 C.F.R. �1614.504(b), an agency has 35 days from

the receipt of an appellant's allegation of breach to resolve the matter.

The Commission has consistently interpreted that provision to mean that

an agency has 35 days within which to cure any breach that has occurred.

See Covington v. USPS, EEOC Appeal No. 01912311 (September 30, 1991).

In the instant case, the record discloses that appellant's work schedule

was changed from intermittent to part-time effective July 7, 1996, within

35 days of appellant's June 12, 1996 letter alleging noncompliance.

The record does not indicate, however, if appellant's current part-time

position is that of a GS-2019-03 Sales Store Checker. Thus, the record

contains insufficient information to properly determine if the agency

cured its breach.

Based on the foregoing, the agency's decision finding that it was in

compliance with the settlement agreement is hereby VACATED. Appellant's

breach allegations are REMANDED to the agency for further processing in

accordance with this decision and the Order below.

ORDER

The agency is ORDERED to take the following actions:

1) Supplement the record with evidence regarding the actions taken to

implement the subject settlement agreement, including what efforts were

made to provide appellant priority consideration for any Checker position

vacancies filled. All documentation regarding any Checker positions

filled following the execution of the settlement agreement should be

included in the record, as well as all documentation regarding whether

appellant was provided priority consideration and, if not, the reason

for not considering her;

2) Supplement the record with documentation regarding the actions taken

on July 7, 1996, i.e., whether appellant was placed in the position

of Sales Store Checker or whether her schedule was merely changed to

part-time; and

3) Within thirty (30) calendar days of the date this decision becomes

final, the agency shall issue a new FAD regarding appellant's breach

allegations.

A copy of the agency's new FAD 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:

Jan 12, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations