Bonita G. Sherrell, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionDec 5, 2001
01A11511_r (E.E.O.C. Dec. 5, 2001)

01A11511_r

12-05-2001

Bonita G. Sherrell, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Bonita G. Sherrell v. Department of Transportation

01A11511

December 5, 2001

.

Bonita G. Sherrell,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A11511

Agency No. 2-01-2015

DECISION

Complainant filed a timely appeal with this Commission from a decision

by the agency dated December 18, 2000, finding that it was in compliance

with the terms of the November 1994 settlement agreement into which the

parties entered.

The settlement agreement provided, in pertinent part, that:

(2) The [agency] agrees that it will retroactively afford Complainant a

temporary detail assignment to the position of Supervisory Air Traffic

Control Specialist, GM-2152-15, at the Washington Air Route Traffic

Control Center. The detail will be effective October 4, 1992, the date

the selected employee's detail became effective and will be of the same

duration as the selected employee's detail to the position. The [agency]

agrees to provide Complainant with back pay, including interest, for

the period of the detail.

(4) The [agency] further agrees to appoint the Complainant to the Traffic

Management Unit [TMU] at the Washington Air Route Traffic Control Center.

Complainant's appointment to this unit shall be on a permanent basis.

In addition, the [agency] agrees that while she is in this unit,

Complainant's supervisor of record will not be Person A.

Complainant contacted an EEO Counselor on July 14, 2000, alleging that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that the agency breached provision (4) of the

agreement when it assigned Person A as her supervisor. The agency

processed complainant's claim as a new complaint of discrimination.

Complainant filed a formal complaint of discrimination on October 18,

2000, raising the breach allegation. On December 13, 2000, complainant

sent a letter to the EEO Counselor requesting that her complaint be

amended to include two new issues of alleged discrimination: (1) on

November 16, 2000, complainant was assigned to the Training Department

while a determination was made whether she could return to operational

duties, and (2) on November 27, 2000, on her first assignment in the

Training Department, complainant was told that she had to leave the

training class because a White class member was uncomfortable with

her presence.

In its December 18, 2000 decision, the agency stated that under 29

C.F.R. � 1614.504, an employee who believes the agency has breached a

settlement agreement is not permitted to initiate a new complaint of

discrimination over the alleged noncompliance. In its decision, the

agency addressed complainant's breach allegation and concluded that

it was in compliance with the November 1994 agreement. Specifically,

the agency stated the agreement prohibited Person A from serving as

complainant's supervisor while she is in the Traffic Management Unit

(TMU) and noted that at the time of the alleged breach, complainant was

no longer assigned to Traffic Management Unit. Thus, the agency argued

that it had complied with the agreement. With regard to complainant's

request to amend her complaint, the agency denied this request and

advised complainant that if she wished to pursue the additional issues

raised in her request to amend, she should contact an EEO Counselor.

On appeal, complainant, through her attorney, argues that the agency

improperly concluded that it did not breach the agreement. Complainant

claims that per the settlement agreement her assignment to the TMU was

to be on a permanent basis. Thus, she states that the agency breached

the agreement when it removed her from TMU and again when it assigned

Person A as her supervisor. With regard to the additional incidents

of discrimination raised in the amendment to her complaint, complainant

claims that the agency improperly dismissed these issues.

At the outset, the Commission notes that complainant's claim that

the agency breached the 1994 settlement agreement should have been

processed according to 29 C.F.R. � 1614.504 and not as a new complaint of

discrimination. However, since the agency's December 18, 2000 decision

found that the agency complied with the 1994 agreement, the Commission

will treat the present case as an appeal of that decision. With regard

to complainant's request to amend her complaint, we find that the agency

properly advised complainant that she should contact an EEO Counselor

to pursue these additional incidents of alleged discrimination.

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.

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 further

held that 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, we find that the agency properly found that it did

not breach the November 1994 settlement agreement. The agreement stated

that the agency would appoint complainant to the Traffic Management

Unit on a permanent basis. The agreement further stated that while

complainant is in the Traffic Management Unit, complainant's supervisor

of record will not be Person A. With regard to complainant's claim that

she was to be placed in the TMU permanently, we find that the agreement

does not specify the length of complainant's assignment to TMU. We find

that the language �permanent basis� refers to complainant's position as a

permanent versus a temporary position. Further, we note that the second

sentence of provision (4) supports the interpretation that her assignment

to TMU would not be indefinite by stating that �while complainant is

in the Traffic Management Unit,� Person A will not be her supervisor.

Complainant does not dispute the agency's argument that at the time

Person A was assigned as her supervisor, she was no longer working in

the Traffic Management Unit. Thus, we find that complainant has failed

to show that the agency breached provision (4) of the agreement.

Accordingly, the agency's decision that it did not breach the settlement

agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 5, 2001

__________________

Date