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.