Walter R. Feaster, Complainant,v.I. Michael Heyman, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01a00429 (E.E.O.C. Feb. 28, 2000)

01a00429

02-28-2000

Walter R. Feaster, Complainant, v. I. Michael Heyman, Secretary, Smithsonian Institution, Agency.


Walter R. Feaster, )

Complainant, )

)

v. ) Appeal No. 01A00429

) Agency Nos. 98-20-022098

I. Michael Heyman, ) 97-23-031097

Secretary, ) 97-11-122496

Smithsonian Institution, )

Agency. )

__________________________________ )

DECISION

Complainant filed the instant appeal from the agency's September 16,

1999 decision finding that the agency did not breach the settlement

agreement (concerning complaints arising under Title VII) entered into

by the parties on June 11, 1999.<1>

The settlement agreement provided that complainant would be provided $750

in compensatory damages and $3,000 in attorney fees. The agreement also

provided

The complainant . . . will receive �priority consideration� of his

application for the position of Maintenance Supervisor, Announcement

No. 99ES-1127, Series WS-3501, Grade 3 . . .

Until May 28, 2000, the complainant . . . will receive �priority

consideration� for vacant positions in the 802 and/or 856 series for

which he is qualified.

The parties stipulate and agree that �priority consideration� means

that [complainant] will be considered ahead of individuals eligible

for special consideration and prior to the issuance of a certificate of

eligible applicants. . . . The parties stipulate and agree that �priority

consideration� is not a guarantee of selection for any position.

By letter dated August 16, 1999 complainant informed the agency that

it had breached the settlement agreement by failing to select him

for the Maintenance Supervisor position. Complainant alleged that

the agency rendered the agreement to provide priority consideration

illusory because the agency ultimately chose not to fill that position.

Complainant admitted that the agency had complied with the other

provisions of the agreement. The agency found in the September 16,

1999 determination that it had not breached the settlement agreement.

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)).

On appeal, complainant argues that he entered the settlement agreement

under duress. The Commission finds that complainant has failed to

provide any evidence (other than his bare, general assertion) showing

that he was under duress when he entered into the agreement. Therefore,

we find that complainant has failed to show that the agreement was not

voluntarily entered into by the parties.

In an affidavit, the Human Resources Specialist asserts: �No other

candidates were interviewed or considered either prior to or subsequent to

consideration of [complainant].� The Human Resources Specialist asserts

that after complainant was not selected for the Maintenance Supervisor

position, the agency decided to cancel the position, assign the leadership

duties to two incumbent employees, and hire a WG-2 custodial worker.

In a memorandum, the Administrative Officer stated that complainant was

interviewed for the Maintenance Supervisor position, but that he was

not selected because of his limited supervisory experience and because

of his response to a particular interview question.

The Commission finds that complainant was given priority consideration as

set forth in the settlement agreement. The agency was under no obligation

to actually fill the Maintenance Supervisor position after not selecting

complainant. Furthermore, under the agreement the agency is obligated

until May 28, 2000 to provide complainant with priority consideration for

vacant positions in the 802 and/or 856 series for which he is qualified.

The Commission finds that complainant has failed to show that the agency

breached the settlement agreement.

The agency's determination finding that the agency did not breach the

settlement agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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. 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 (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:

February 28, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

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

Equal Employment Assistant

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.