01984047_r
06-22-1999
Willie Glover, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Willie Glover, )
Appellant, )
) Appeal No. 01984047
v. ) Agency No. 90-65886-006
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
On April 21, 1998, appellant timely appealed the agency's final
decision, dated April 6, 1998, 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.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO complaint
in 1992.<1> Appellant and the agency settled the complaint on August
5, 1992. The settlement agreement provided, in pertinent part, that the
agency shall provide (Person A) and appellant priority consideration
for the next GS/GM-861-13 Aerospace Engineer position, but attempt to
place Person A first unless the duties and responsibilities of the next
GS/GM-861-13 position is more akin to or consistent with appellant's
experience, education, etc., and upon placement of either appellant or
Person A, provide the remaining complainant priority consideration for
the next GS/GM-861-13 Aerospace Engineer Position.
By letter to the Commission dated January 26, 1998, forwarded to the
agency February 12, 1998, appellant alleged that the agency breached the
settlement agreement. Appellant asserted that fourteen months elapsed
before appellant was placed in a GS/GM-861-13 supervisory position,
although a position was open in Code 352 which was being staffed by
GS-12's acting in supervisory roles. Appellant contended that the
position he was given had limited control and authority relative to white
GS-13 branch supervisors. Further, appellant alleged that he should have
been placed in the next available position, which controlled the E-6
program, but that the E-6 program was transferred from one supervisor
(Person B) to another (Person C) shortly before Person B retired and
appellant was given priority consideration for the vacancy left by Person
B's retirement. Appellant also contended that Person C was in a detail
position (with AX program) before he received the new E-6 duties, and that
Person C's position was made permanent when he was given the E-6 duties,
thus thwarting his return to his prior position at the expiration of
his detail or at the pending cancellation of the AX program.
In its final decision dated April 6, 1998, the agency declined to
reinstate appellant's complaint, finding that it had not breached the
settlement agreement. The agency provided no explanation for its findings
in the April 6, 1998 decision.
On appeal, appellant asserts that the agency knew the AX program was
going to be canceled, which would force its detailed supervisor, Person C,
to return to his permanent assignment on a different project. Appellant
claims that when Person B was relieved of the E-6 project, no new duties
or position description was provided for him. Appellant also argues
that the transfer of duties from Person B to Person C was in essence a
lateral transfer for both supervisors, but no SF-52 forms were issued.
Appellant contends that if SF-52 forms had been completed for the position
switches, then appellant or Person A would have priority consideration
for the available positions, including the prestigious E-6 assignment.<2>
In response, the agency notes that Person A, who had priority
consideration before appellant, was given the Code 352 position that
had been staffed by GS-12 acting supervisors. The agency explains the
situation concerning the E-6 project as follows: Person C, detailed to
supervise the AX program, completed a report shortly after the settlement
agreement was signed, in which Person C projected that AX would continue
for four (4) years. Given Person C's projections, the agency converted
Person C and his staff to permanent positions from temporary detail.
When the AX program was canceled unexpectedly several months later,
Person C and his staff were given work on the E-6 program. Person C
was made supervisor of E-6, and his staff included seventeen (17)
employees (including Person B, a fellow GS-13 engineer). The project
then expanded, giving Person C supervisory authority over forty-four
(44) employees, including three GS-13 engineers. After the E-6 project
expansion, the agency conducted a desk audit of Person C's position,
and ascertained that Person C was performing GS-14 duties because of
the number and qualifications of the employees Person C was supervising.
Person B then unexpectedly retired, which left a GS/GM-861-13 Aerospace
Engineer position open.
The agency denies that any GS/GM-861-13 Aerospace Engineer positions were
open prior to Person B's retirement. The agency argues that appellant was
given priority consideration for the position vacated by Person B in late
1993 (and given the position effective January 6, 1994), which fulfilled
its responsibilities under the August 5, 1992 settlement agreement.
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 (Dec. 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 (Aug. 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 (Dec. 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).
The Commission has previously interpreted the phrase "priority
consideration" as follows: �Priority consideration is commonly
understood to mean that appellant must be considered before any
formal action to recruit for the vacancy, and must be give[n] bona fide
consideration on her own merit, without competition with other potential
candidates. Priority consideration does not guarantee selection. . . .�
Bishop v. Department of Transportation, EEOC Request No. 05910148
(Apr. 10, 1991) (citation omitted).
The record reflects that no vacancy existed for which appellant
was entitled priority consideration prior to Person B's retirement.
The agency did not breach the agreement by transferring duties between two
existing GS-13 Aerospace Engineer positions. Further, whether the agency
was attempting to position Person C for a promotion to the GS-14 level,
thereby denying appellant an opportunity for GS-14 promotion, is beyond
the scope of the August 5, 1992 settlement agreement. To the extent
that appellant alleges that he was discriminatorily denied control of
the E-6 project and a promotional opportunity, appellant is raising new
allegations which should be discussed with an EEO Counselor if appellant
wishes to pursue a complaint and has not already done so.
CONCLUSION
Accordingly, the agency's decision that it did not breach the August 5,
1992 settlement agreement is AFFIRMED.
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 (S0993)
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:
June 22, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Further information is not available
because the agency destroyed the original closed case file pursuant
to record retention regulations.
2Appellant also notes that Person C was eventually given a detail
promotion to GS-14 because of his expanded responsibilities in the
E-6 program. The Commission notes that appellant has filed a separate
complaint of discrimination, Agency Number 96-65886-002 (EEOC Appeal
No. 01962855) concerning, inter alia, his non-selection for the GS-14
detail.