05980695_r
08-31-2000
Sam A. Winchester, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Sam A. Winchester, )
Complainant, )
)
v. ) Request No. 05980695
) Appeal No. 01972117
Richard J. Danzig, ) Agency No. 96-62306-007
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On April 23, 1998, the agency initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in
Winchester v. Department of the Navy, EEOC Appeal No. 01972117 (March
23, 1998).<1> The Commission, in its discretion, may grant a party's
request to reconsider a decision issued under the regulation set forth
at 64 Fed. Reg 37,644, 37,659 (1999) (to be codified as 29 C.F.R. �
1614.405(a)), if the party demonstrates that:
The appellate decision involved a clearly erroneous interpretation of
material fact or law; or
The decision will have a substantial impact on the policies, practices
or operations of the agency.
64 Fed. Reg 37,644, 37,659 (1999) (to be codified as and hereinafter
cited as 29 C.F.R. � 1614.405(b)).
The prior appeal was from an agency decision dated December 12, 1996,
finding that the agency had not breached a settlement agreement entered
into between the parties on October 24, 1996. The settlement agreement
provided:
Complainant will resubmit his application for Computer Scientist
GS-1550-13 along with a copy of his college transcripts to the Human
Resources Office not later than November 1, 1996. If Complainant
satisfies the educational, specialized experience, and other requirements
for a GS-1550-13 Computer Scientist position as set forth in the OPM
[Office of Personnel Management] Qualifications Standards Operating
Manual (attached), and if he is rated qualified for the position, he
will be promoted to the position of GS-1550-13.
In the agency decision, the agency found that based upon complainant's
application, complainant did not qualify for the Computer Scientist,
GS-1550-13, position. The previous decision found that the evidence
was ambiguous and that the Commission could not determine whether the
agency violated the settlement agreement. The previous decision vacated
the agency's decision and remanded the matter to the agency for further
processing.
In the agency's request to reconsider the previous decision, the agency
asserts that it has new evidence not previously available. The agency has
submitted a copy of an OPM memorandum dated October 6, 1997, reviewing
complainant's qualifications for the Computer Scientist position.
This memorandum was issued approximately nine months after complainant
filed the appeal with the Commission. The October 6, 1997 memorandum from
OPM was issued in response to the agency's request for a determination of
the qualifications of complainant for the position of Computer Scientist,
GS-1550-13. The October 6, 1997 memorandum from OPM concluded:
Our opinion is that [complainant] does not qualify for this position
because his experience does not meet the definition of specialized
experience in that it does not reflect the possession [of] the knowledges,
skills, and abilities required by the position description. This is an
advisory opinion only.
The instant request is granted, because the October 6, 1997 memorandum
from OPM, which was not available at the time the agency was required
to submit its brief in the prior appeal, combined with our review of
the record, shows that the prior decision involved a clearly erroneous
interpretation of material fact.
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 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)).
The record shows that the agency convened a panel which provided a
specific and detailed determination that complainant was not qualified
for the Computer Scientist position because of his lack of experience
at the GS-12 Computer Scientist level. OPM has provided an independent
conclusion that complainant was not qualified for the Computer Scientist
position. The Commission finds that complainant has failed to show that
the determinations that he was not qualified for the Computer Scientist
position were incorrect or were reached in bad faith. Complainant has not
met his burden of showing that he satisfied the requirements (including
education and specialized experience) of the Computer Scientist position
and should have been rated qualified for the position. Therefore,
we find that complainant failed to show that the agency breached the
settlement agreement.
Therefore, the agency was proper in finding that complainant failed to
show that the agency breached the settlement agreement. The decision
in EEOC Appeal No. 01972117 is REVERSED. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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:
August 31, 2000
________________ ______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.