01981727
03-08-1999
Asghar Haqq, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Asghar Haqq, )
Appellant, )
)
v. ) Appeal No. 01981727
) Agency No. 92(53)HQ
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal on December 22, 1997 alleging
that the agency breached the priority consideration provision in the
settlement agreement entered into by the parties on September 2, 1993.
The provision at issue provided:
[The agency] will provide [appellant] priority consideration for the
next available GM-14 position in the Office of Civil Rights for which
he is deemed qualified.
By letter dated October 3, 1995 appellant alleged that the agency
breached the priority consideration provision of the September 2, 1993
settlement agreement. The agency issued a decision dated October 20,
1995 in response to appellant's breach allegation raised in the October 3,
1995 letter. In the October 20, 1995 decision the agency found:
[I]n or about December of 1993, a selection was made for the position of
Program Analyst, GS-14, Vacancy Announcement No. 94-ED-049. In accordance
with the agreement, you were provided priority consideration for that
position when your application was considered by the selecting official
(concurrently with the applications of two other individuals possessing
priority consideration status) prior to consideration of any other
applications. As you are aware, you were nonselected for that position,
in favor of one of the competing individuals with priority consideration.
Therefore, the terms of the agreement have been fully executed and there
has been no breach of that agreement.
The October 20, 1995 decision provided appeal rights to the Commission.
There is no indication in the appellate record or in Commission records
showing that appellant ever filed an appeal from the October 20,
1995 decision.
By letter dated November 4, 1997 appellant informed the agency that the
agency had breached the priority consideration provision of the September
2, 1993 settlement agreement. Appellant stated in the November 4,
1997 letter:
On or about October 8, 1997, [appellant] had a conversation with
[Person A], a co-worker, who was one of the two other individuals who
had priority consideration status for this position. [Person A] informed
[appellant] that he had learned through the EEO process that there was,
in fact, no priority consideration process followed for this position.
Therefore, given that [appellant] just recently discovered that he was
not in fact given priority consideration for this position, he is timely
in making this claim of breach.
By letter dated November 18, 1997 the agency responded to appellant's
November 4, 1997 letter. In the November 18, 1997 letter the agency
stated:
Please be advised that [appellant] raised the same allegation of breach
on October 3, 1995. By letter dated October 20, 1995, we responded
. . . As [far] as we can determine, [appellant] chose not to appeal
that decision.
. . . .
I hope the foregoing proves helpful.
The November 18, 1997 agency letter did not provide appellant with any
appeal rights. The November 18, 1997 agency letter did not reconsider
whether the agency breached the agreement.
Appellant filed the instant appeal from the agency's November 18,
1997 letter. On appeal appellant argues:
The basis for this appeal is that the agency erred in finding that
[appellant] raised the same allegation of breach on October 3, 1995
as he raised on November 4, 1997. The allegation of breach raised by
[appellant] on October 3, 1995 concerned announcement number 94-ED-50
. . . In contrast, the allegation of breach raised by [appellant]
on November 4, 1997 concerned announcement number 94-ED-49 . . .
EEOC Regulation 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)).
In the instant appeal appellant is alleging that the agency breached
the priority consideration provision of the settlement agreement.
The agency found in the October 20, 1995 decision that it did not breach
the priority consideration provision. This is not a situation where the
agency found that it had yet to comply with the priority consideration
provision; rather, the agency found in the October 20, 1995 decision
that appellant had been granted priority consideration for a particular
position (94-ED-049) and that the terms of the agreement had been
"fully executed." Thus, the issue of whether the agency has fully
complied with the priority consideration provision of the settlement
agreement was decided by the agency on October 20, 1995. Appellant has
not and is not appealing the October 20, 1995 decision.
Appellant may not now make a separate claim that the agency breached a
provision of the agreement after the agency previously found that the
agency had completed its compliance with that provision. The Commission
finds that the agency's November 18, 1997 letter is effectively a
dismissal of appellant's breach allegation raised in the November 4,
1997 letter. Because the issue of priority consideration was decided
in the October 20, 1995 decision we find that the agency properly stated
in the November 18, 1997 letter that the agency had previously found
that the agency had complied with that provision of the settlement
agreement. The Commission shall not entertain appellant's attempt to
relitigate the same claim that has been decided by the agency. Cf. 29
C.F.R. �1614.107(a) (requiring dismissal of a complaint stating the same
claim that has been decided by the agency).
The agency's November 18, 1997 dismissal of appellant's breach allegation
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. �l6l4.604(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. 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 (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:
March 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations