01984625
10-20-1999
John V. Duncan, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
John V. Duncan v. Department of Agriculture
01984625
October 20, 1999
John V. Duncan, )
Appellant, )
)
v. ) Appeal No. 01984625
) Agency Nos. 960130; 970982
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's April 20, 1998
decision which: (1) found that the agency did not breach the settlement
agreement entered into by the parties on April 17, 1996 (breach allegation
- 960130); and (2) dismissed appellant's formal complaint dated July
28, 1997, for stating the same claim as raised in the breach allegation
(EEO complaint - 970982).
Breach Allegation - 960130
The settlement agreement provided (in addition to other consideration)
that the agency would:
Give complainant priority consideration for vacant positions in Puerto
Rico with emphasis on the Eastern side of the island for a period of
three years; in Wyoming with emphasis in the Cheyenne, WY area for
a period of two years; and for a part-time port position in Arizona
for a period of one year. These offers are not mutually exclusive of
one another. These three priority placements are independent entities.
Consideration will be given before any attempts are made to recruit
for the positions by any other means. Complainant will be considered
before the position is announced and is expected to be selected for the
position unless there exists persuasive reasons for not doing so.
Both parties in the agreement agreed that:
Explicit terms of the agreement will not be released to anyone who does
not need the information to implement the agreement, without the express
permission of the other party.
By letter dated May 30, 1997 appellant alleged that the agency breached
provision 1 of the settlement agreement by beginning recruitment efforts
for vacancy announcement 6-87-280-7 in Phoenix, Arizona "prior to the
lapsing of the settlement term for this position in Arizona." Appellant
alleged that he did not receive priority consideration for 6-87-280-7.
Appellant also claimed that the position announced under 6-87-280-7
included "part-time duties of an Arizona port."
In the April 20, 1998 decision the agency found that "no part-time port
positions were requested by the Veterinary Services or were advertised
from April 16, 1996 to April 16, 1997." The agency found that on "April
22, 1997, the staffing specialist received an SF-52 to recruit for a
full time Veterinary Medical Officer position in Arizona." The agency
stated that on July 10, 1997 the agency informed appellant that he had
been selected for the Veterinary Medical Officer position in Phoenix,
but that on July 18, 1997, appellant declined the offer. The agency
concluded:
We find that the agency erred in advertising the position without
offering it to the complainant under priority consideration. However,
when the error was discovered, the agency offered the position to rectify
the error. We do not find any validity in the reasons offered by the
complainant for rejecting the offer.
The complainant alleged that the confidentiality term had been breached.
However, the complainant did not elaborate on this allegation.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
"within 30 days of when the complainant knew or should have known of
the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant
may request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant 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
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
There is no evidence in the record showing that any part-time port
position in Arizona was vacant from April 17, 1996 (when the agreement
was entered into) through April 17, 1997 (the end of the period of one
year as specified in the agreement). A copy of the vacancy announcement
for 6-87-280-7 shows that the position was advertised with an opening
date of May 5, 1997 and the title was identified as "Veterinary Medical
Officer, GS-701-12." There is no evidence in the record reflecting
that this vacancy was a part time position. Furthermore, there is
no evidence in the record showing that any attempt had been made to
recruit for this position from April 17, 1996 through April 17, 1997.
Appellant has not shown that the agency acted in bad faith by writing
or delaying vacancy announcements in order to avoid having to grant
appellant priority consideration in Arizona. Therefore, we find that
appellant has failed to show that the agency breached provision 1 of
the settlement agreement. Appellant has also failed to show that the
agency breached the confidentiality provision of the agreement.
EEO Complaint - 970982
Appellant filed an EEO complaint dated July 28, 1997 alleging that he
was discriminated against on the bases of race, national origin, and
retaliation. Appellant's complaint listed the allegation(s) as follows:
Continued discrimination and reprisal. Utilization of discrim[i]natory
and harassing pressure tactics, providing inaccurate information which
interfered with decision making (part-time vs full-time, port duty
options). Actions resulting in lost opportunity.
The agency dismissed the complaint for stating the same claim as
raised in the breach allegation. Appellant's EEO complaint concerns
the agency's handling of the job offer the agency made to appellant.
The agency stated that it made the job offer in order to comply with
the settlement agreement. Appellant is alleging that he was not given
accurate information about that offer and was pressured regarding that
offer. We find that such a matter is inextricably intertwined with the
breach allegation and that the agency properly dismissed this complaint
pursuant to �1614.107(a).
The agency's decision finding that the agency did not breach the
settlement agreement (960130) is AFFIRMED. The agency's decision
dismissing appellant's complaint (970982) is 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. �l6l4.604(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. 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 (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:
10/20/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations