Jacqueline Moray Grant, Appellant,v.William S. Cohen, Secretary, Department of Defense, (National Imagery and Mapping Agency), Agency.

Equal Employment Opportunity CommissionOct 27, 1999
01991024 (E.E.O.C. Oct. 27, 1999)

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.