Jacob Perez, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJan 27, 2000
01991687 (E.E.O.C. Jan. 27, 2000)

01991687

01-27-2000

Jacob Perez, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Jacob Perez, )

Complainant, )

)

v. ) Appeal No. 01991687

) Agency No. OJP98PE02

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

______________________________)

DECISION

Complainant timely appealed the agency's final decision not to reinstate

his complaint of unlawful employment discrimination that the parties

had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. �� 1614.402(a),

1614.504); EEOC Order No. 960, as amended.

The record indicates that complainant, a Statistician, GS-12, filed

a formal complaint dated July 24, 1995, concerning the denial of a

reassignment to the Inter-governmental Assistance Program Branch and the

denial of a promotion to a GS-13 grade level. Thereafter, on September 1,

1995, the parties entered into a settlement agreement, which provided,

in pertinent part, that:

The agency would reassign complainant to the Inter-governmental

Assistance Program Branch of the Bureau of Justice Statistics in a

GS-12/5 Statistician position and continue to assure him that it would

not monitor him for any prohibited reason, including on the basis of

race or religion.

By notice dated September 30, 1998, complainant alleged that the

settlement agreement was voidable. Specifically, complainant indicated

that the agency failed to inform its managers about the settlement

agreement; he was still subjected to discrimination on the part of the

agency after the settlement agreement; the settlement agreement failed to

address the denial of his promotion to a GS-13 grade level; he was already

assigned to the Inter-government Assistance Program Branch on August 24,

1995, prior to the settlement agreement; and after this reassignment,

he was denied a database depriving him of the opportunity to write and

publish.

In its November 20, 1998 final decision, the agency stated that it did

not breach the settlement agreement. The agency indicated that although

it appeared that complainant was no longer satisfied with the terms he

agreed to in 1995, it did not constitute a breach. The agency noted

that complainant was free to pursue any retaliation claim involving

incidents subsequent to the settlement agreement, and he, in fact, filed

such a complaint on September 2, 1998. The agency stated that although

complainant was assigned to the Inter-government Assistance Program Branch

prior to the settlement, the agreement did provide for his reassignment

to a GS-12/5 level position. The agency also stated that the settlement

agreement did not address the specific assignments he would be given

after his reassignment to the Inter-government Assistance Program Branch.

Finally, the agency noted that the alleged breach incidents occurring

in 1995, and 1997, were untimely.

On appeal, complainant, reiterating his previous arguments, asserts that

he was denied a assignment to �International Crime.�

EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of 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.

The agency shall resolve the matter and respond to the complainant,

in writing. If the agency has not responded to the complainant, in

writing, or if the complainant is not satisfied with the agency's attempt

to resolve the matter, the complainant may appeal to the Commission for

a determination as to whether the agency has complied with the terms of

the settlement agreement or final decision.

The Commission has held that settlement agreements are contracts between

the complainant and the agency and it is the intent of the parties

as expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

Upon review, we find that the agency did not breach the settlement

agreement at issue. Under the settlement agreement, the agency promised

complainant a reassignment to the Inter-government Assistance Program

Branch as a GS-12/5 Statistician and assured him that he would not be

monitored unlawfully. Complainant did not allege that he was denied

the reassignment to the GS-12 position nor did he allege that he was

monitored. Upon review, we find that complainant's claims concerning

a promotion to a GS-13 level position and the �International Crime�

assignment and/or the opportunity to write and publish are beyond the

scope of the terms of the settlement agreement. As the agency stated in

its final decision, these matters were not included in the settlement

agreement, and complainant should have made sure that these items were

expressly included in the settlement agreement in order to bind the

agency under the terms thereof. Furthermore, there is no provision in

the settlement agreement that complainant's managers would be informed

of the settlement agreement. With regard to subsequent incidents of

reprisal, the record indicates that complainant properly filed a formal

complaint pursuant to the regulations, which is pending before the agency.

There is no evidence in the record that complainant was under duress or

coercion nor is there any evidence of misrepresentation or mistake on the

part of either party at the time of the settlement agreement. See Love

v. United States Postal Service, EEOC Appeal No. 01893655 (October 19,

1989) (where complainant entered into the settlement agreement willingly,

the Commission found no reason to void the settlement agreement).

Accordingly, the agency's final decision finding no settlement breach

is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

January 27, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.