01991024
10-27-1999
Jacqueline Moray Grant, Appellant, v. William S. Cohen, Secretary, Department of Defense, (National Imagery and Mapping Agency), Agency.
Jacqueline Moray Grant v. Department of Defense
01991024
October 27, 1999
Jacqueline Moray Grant, )
Appellant, )
)
v. ) Appeal No. 01991024
) Agency No. HR-95-09
William S. Cohen, )
Secretary, )
Department of Defense, )
(National Imagery and Mapping )
Agency), )
Agency. )
_______________________________)
DECISION
On October 28, 1998, appellant filed a timely<1> appeal with this
Commission from a final decision (FAD) by the agency dated September 25,
1998, finding that it was in compliance with the terms of the August
1, 1997 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:
...(1) [The agency] agrees to provide priority consideration to the
complainant for three vacant positions for which the complainant is
qualified, within the Human Resources Office, for one year after the
effective date of this agreement; whichever occurs sooner (consideration
for said vacancies or the one-year period).
(2) The parties agree that priority consideration means that the
complainant, if determined to be qualified, will be considered for
vacancies described in paragraph 1. ... Priority consideration does not
mean mandatory selection.
... (6) The complainant acknowledges that she will not receive priority
consideration for positions for which she is not qualified. No term
in this agreement shall be interpreted to mean that the complainant is
guaranteed a position with [the agency]....
By letter to the agency dated August 19, 1998, the appellant alleged
that the agency was in breach of the settlement agreement and requested
that the agency specifically implement the terms of the agreement or
reinstate her complaint.
In its September 25, 1998 FAD, the agency concluded that it was in
compliance with the settlement agreement and denied the appellant's
request to have her prior EEO complaint reinstated. Specifically, the
agency asserted that during the pertinent one-year period (August 1,
1997 through August 1, 1998), twenty-three positions were recruited for
in the Human Resources office and that the appellant lacked the required
qualifications to afford her priority consideration for any of them.
The agency submitted a list of the twenty-three positions and the reason
why it considered the appellant ineligible.
Thereafter, the appellant timely filed the instant appeal. In response
the agency asserted that it is in complete compliance with the
settlement agreement because the appellant was not qualified for any
of the positions in the Human Resources office which were recruited
for within the pertinent one-year period contained in the settlement
agreement. Furthermore, the agency points out that the settlement
agreement specifically stated that the appellant would not receive
priority consideration for positions for which she was not qualified
and that no term of the settlement agreement guaranteed the appellant
a position with the agency. The settlement agreement provided priority
consideration would be given only for positions within the Human Resources
office of the agency.
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.
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 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 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 appellant alleged that the agency breached
the settlement agreement by not informing her of open support positions
within the agency.
We find that the settlement agreement did not provide that the agency
would give the appellant priority consideration for every support position
agency wide for a one-year period. The settlement agreement provided that
the agency would provide priority consideration only for one-year or for
three positions in the Human Resources office (for which the appellant
was qualified). The record contains evidence that the appellant was
not qualified for any of the twenty-three positions which became open
during the pertinent one-year period. Moreover, the appellant fails to
assert that she was qualified for any of the twenty-three positions in
the Human Resources office which were recruited for during the pertinent
one-year period. Therefore, we find that the agency did not breach
the settlement agreement.
Accordingly, the agency's final decision is hereby AFFIRMED.
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 (S0993)
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:
Oct. 27, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The agency failed to provide evidence showing the date the appellant
received its final decision. Accordingly, we find appellant's appeal
timely filed.