Johnv.Duncan, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01984625 (E.E.O.C. Oct. 20, 1999)

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