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