0120083936
01-28-2009
Hydar B. Mirza, Complainant, v. Pete Geren, Secretary, Department of the Army, (Army National Guard Bureau), Agency.
Hydar B. Mirza,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
(Army National Guard Bureau),
Agency.
Appeal No. 0120083936
Agency No. T0038NYA0198NL
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 22, 2008, finding that it
was in compliance with the terms of the November 17, 1999 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.
At the time the parties entered into the 1999 settlement agreement,
complainant was employed by the New York Army National Guard as a GS-07
Supply Technician. He filed an EEO complaint over his non-selection to
a number of auditor positions, which resulted in the settlement agreement
at issue when the complaint was before this Commission's New York District
Office at the hearing stage.
The settlement agreement provided, in pertinent part, that:
(1) Any vacancy for a position as an auditor, shall be posted as
either a competitive or as both a competitive and excepted position.1
The agency explicitly agrees not to hire any individual for an auditor
position for which complainant may be qualified by education and
experience, who is not, as of the date of appointment, employed by the
agency.
(2) The agency agrees to interview complainant first for any
competitive vacancy within the United States Property and Fiscal Office
- New York, for which he may be qualified by education and experience.
The agency agrees to make an initial decision as to whether complainant
is suitable candidate for the vacancy.
(3) In event that the agency determines to fill the vacancy with
an individual other than complainant, the agency shall demonstrate a
rational basis for its determination to select such other individual.
By letter to the agency dated March 18, 2008, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency reinstate his original complaint. First, complainant alleged that
Vacancy Announcement T06-579, an auditor position, was advertised only
as an excepted position, thus excluding him from competing in violation
of paragraph 1 of the agreement. Second, complainant alleges the agency
also violated the agreement when, for Vacancy Announcement T07-480, other
candidates were interviewed before a decision was made on his candidacy,
and he did not believe the agency demonstrated a rational basis for
his eventual non-selection. On appeal, complainant notes that since
he entered into the settlement agreement with agency in 1999 "there has
not been a single auditor job announcement until the two mentioned above
[Vacancy Announcements T06-579 and T07-480].
In its August 22, 2008 FAD, the agency concluded it was not in breach
of the agreement, stating, without discussion, that "management has
articulated legitimate non-discriminatory reasons for its interpretation
of the agreement and actions taken there under."
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 Commission finds that the agency's reasons
for finding it is not in breach of the agreement are unclear. In its
decision on the matter, the agency does not explain what management's
nondiscriminatory reasons are or what interpretation the agency is giving
the agreement. In addition, the agency has not provided, or even pointed
to, evidence in the record supporting its "position." The Commission
has been clear "the agency has the burden of providing evidence and/or
proof to support its final decisions." Ericson v. Department of the
Army, EEOC Request No. 05920623 (January 14, 1993); Gens v. Department of
Defense, EEOC Request No. 05910837 (January 31, 1992). Accordingly,
the Commission finds that breach of the agreement can be assumed and
complainant's original complaint should be reinstated. Moreover,
the original complaint should be amended to include complainant's
non-selections in Vacancy Announcements T06-579 and T07-480. The original
complaint, as amended, is remanded to the agency for processing in
accordance with the following Order.
ORDER
The agency is ordered to process the remanded complaint, as amended,
in accordance with 29 C.F.R. Part 1614. The agency shall acknowledge
to the complainant that it has received the remanded complaint, as
amended, within thirty (30) calendar days of the date this decision
becomes final. The agency shall conduct a supplemental investigation
into the amendments to the original complaint (non-selections in Vacancy
Announcements T06-579 and T07-480). The agency shall issue to complainant
a copy of the supplemental investigative file, as well as the original
investigative file, and also shall notify complainant of the appropriate
rights to request a hearing or a final decision without a hearing within
one hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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)
(1994 & Supp. IV 1999). 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 28, 2009
__________________
Date
1 The record indicates that complainant is only eligible to apply for
competitive positions.
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0120083936
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083936