01990239
09-17-1999
Silvareen Thomas, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Silvareen Thomas v. Department of the Air Force
01990239
September 17, 1999
Silvareen Thomas, )
Appellant, )
) Appeal No. 01990239
v. ) Agency No. BVIM96004
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision finding that it
did not breach the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the terms of the
settlement agreement into which the parties entered.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO
complaint on January 1, 1996, alleging that she had been subjected
to unlawful discrimination on the basis of race (African-American).
The agency initially accepted appellant's complaint for processing, and
conducted an investigation. Prior to a hearing being held, appellant
and the agency settled the complaint on April 30, 1996. The settlement
agreement provided, in pertinent part, that the agency agrees to:
(2)(c) Consider reassigning [appellant] to the next available vacant
NAF 40-hour week position for which appellant qualifies (after mandatory
hiring priorities are cleared). This consideration will not constitute
selection.
By letter to the agency dated June 19, 1998, appellant alleged that the
settlement agreement had been breached when she was not selected for
several NAV 40-hour positions. Appellant submitted copies of several
vacancy announcements, which were scheduled to close on February 20,
1998, and November 8, 1998.
In its final decision dated September 15, 1998, the agency declined
to reinstate appellant's complaint, finding that it had not breached
the settlement agreement. The agency asserted that appellant never
applied for any of the positions for which she would be qualified.
These positions closed on October 1, 1996, January 29, 1998, February 6,
1998, February 23, 1998, March 4, 1998, and April 17, 1998. Further, the
agency found that appellant's allegation of breach was raised more than
two months after the last position closed, and therefore was untimely.
On appeal, appellant argues that the first position, dated October 1,
1996, was never posted. Further, appellant contends that she did not have
a duty under the settlement agreement to monitor Vacancy Announcements
or apply for the positions. Appellant asserts that she was told not
to apply for several positions, because she was not qualified, or other
employees had priority over appellant. Appellant contends that she was
told that she did not need to apply in order to receive consideration
for the positions for which she did qualify.
ANALYSIS AND FINDINGS
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. In addition, 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 consistently held that settlement agreements are
contracts between appellant and the agency, and 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 Hyon
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 present case, it is plain and unambiguous that the agency had
an affirmative duty to consider appellant for the next available NAV
40-hour position for which appellant qualified and mandatory hiring
priorities did not preempt. The settlement agreement did not impose a
duty on appellant to apply for the positions.
Nonetheless, it is unclear from the record whether appellant was
considered for the next available NAV 40-hour position for which she was
qualified and not preempted by mandatory hiring priorities. Further,
if appellant should have been considered for the positions, it is not
clear when appellant gained a reasonable awareness that the settlement
agreement had been breached.
CONCLUSION
Accordingly, the agency's decision not to reinstate appellant's complaint
is VACATED, and the case is REMANDED for a supplemental investigation.
ORDER
The agency is ORDERED to perform the following:
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall conduct a supplemental investigation to determine
whether appellant was considered for NAV 40-hour positions for which she
was qualified. This investigation shall include, but is not limited
to, obtaining an affidavit or statement from the selecting officials
and/or contact officials for the positions referenced in the agency's
September 15, 1998 final agency decision, concerning whether appellant
was considered for an available position for which she was qualified.
The investigation also shall include a copy of any materials that document
the agency's consideration of appellant for particular positions,
such as a qualified list, best qualified list, ranking of applicants,
KSA's from appellant, list of interviewees, and notes from the selection
process pertaining to appellant.
The agency shall also conduct a supplemental investigation to determine
when appellant gained a reasonable suspicion that the April 30, 1996
Settlement Agreement was breached. This investigation shall include an
affidavit or statement from appellant, concerning the date on which she
became aware that she was not being considered for NAV 40-hour vacancies.
The investigation also shall include any other relevant evidence necessary
to determine the timeliness of appellant's allegation of breach, such as
a copy of the vacancy announcements for which appellant should have been
considered, the date on which each position was filled, and a copy of
any document announcing a selectee for the position. This investigation
also shall be included in the present case file.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall issue a new final decision determining (1) whether
appellant timely raised her allegation of breach, and (2) whether the
agency breached the April 30, 1996 settlement agreement.
A copy of the new final agency decision must be submitted to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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:
Sept. 17, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations