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.