01a12306_r
05-31-2001
Monteze Jaggers, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Monteze Jaggers v. Department of the Army
01A12306
May 31, 2001
.
Monteze Jaggers,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A12306
Agency No. AVKCF09610H0310
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated February 7, 2001, finding that it was in
compliance with the terms of the July 22, 1999 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
The agency will provide complainant with priority placement to the
first available GS-13 position for which she is fully qualified within
the San Francisco District within one year of signing the agreement.
This provision excludes a GS-13 position within the Contracting Division,
San Francisco District. Complainant's pay will be calculated using the
highest previous rate.
In a letter to the agency dated October 25, 2000, complainant alleged
that the agency breached the agreement because she had not been placed
in a GS-13 position over a year after signing the agreement. Moreover,
on appeal, complainant contends that the agency never notified her that
there were no available GS-13 positions to place her, nor has the agency
responded to her requests for information regarding the availability of
such positions.
In its final decision, the agency found that it complied with the
settlement agreement's terms. Specifically, the agency concluded that
there were no available GS-13 vacancies for which complainant was
qualified during the year subsequent to the enactment of the settlement
agreement. Moreover, the agency found that it notified complainant of
the lack of available positions in an email to her on August 15, 2000.
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.
The Commission has held that 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 further
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).
Upon review, the Commission is unable to ascertain whether the agency
has complied with the terms of the settlement agreement. On appeal, the
agency proffers no evidence for the record regarding the availability of
a relevant GS-13 position for complainant. Instead, it summarily contends
that no such position existed from July 23, 1999 through July 23, 2000.
Likewise, the agency provides no documentation of communication with
complainant in response to complainant's inquiries about the availability
of positions during the relevant time period. An agency has the burden
of providing sufficient evidence in support of its final decision.
Moore v. Department of the Navy, EEOC Request No. 05930694 (April 7,
1994); Henry v. United States Postal Service, EEOC Request No. 05940897
(May 10, 1995), citing Gens v. Department of Defense, Defense Logistics
Agency, EEOC Request No. 05910837 (January 31, 1992). In the present
case, we find that the agency has failed to meet its burden of providing
a clear and adequate record on critical matters. Hines v. U.S. Postal
Service, EEOC Appeal No. 01923566 (May 13, 1993). Consequently, the
Commission VACATES the final decision, and hereby REMANDS the claim to
the agency for a supplemental investigation and further processing in
accordance with the ORDER below.
ORDER
The agency shall conduct a supplemental investigation by providing in the
record evidence which demonstrates either (a) that complainant received
bona fide priority consideration by the selecting official for the first
available GS-13 position for which complainant was qualified within the
San Francisco District Office within one year of signing the settlement
agreement of July 22, 1999, or (b) that no such positions were available
during this time period. The supplemental investigation shall include,
if applicable, documentation of all available job listings for GS-13
vacancies in the San Francisco District from July 22, 1999 through
July 22, 2000, as well as copies of any correspondence with complainant
regarding the availability of positions in the agency from July 22, 1999
through July 22, 2000. Based on the foregoing information, the agency,
within thirty (30) calendar days of the date that this decision becomes
final, shall issue a final agency decision and/or notify complainant that
the agency is reinstating her complaint for further processing from the
point that processing ceased.
A copy of the agency's final decision and/or the agency's letter of
complaint reinstatement must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 31, 2001
__________________
Date