01A13795_r
10-11-2001
Henry L. Butler, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Henry L. Butler v. Department of Transportation
01A13795
October 11, 2001
.
Henry L. Butler,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A13795
Agency No. 2-92-2244B
DECISION
Complainant timely appealed the agency's decision dated April 25,
2001, which concluded that the agency had not breached the settlement
agreement between the parties. On June 18, 1997, the parties resolved
complainant's complaint by entering into a settlement agreement, which
provided, in pertinent part, that complainant would receive the following:
2(b) The complainant will be promoted retroactively to a GM-2152-15/6.
The effective date of that promotion will be retroactive to January
1, 1989, with a per annum salary of $66,683. The promotion will be
effected with appropriate subsequent merit increases and within grade
increases, bringing the Complainant to a current FM-2152-15/10 salary.
The merit increases for 1989 through 1992 will be based on outstanding
performance appraisals. This action will be accomplished within 60 days
of the date of this signed Agreement.
2(c) Effective 9/14/97, the Complainant will be reassigned to the position
of Special Assistant, FM-2152-15, Position Description Number AC-5136.
The Complainant will be direct report to the Manager of the Air Traffic
Division, AMA-500, Oklahoma City, Oklahoma. The complainant will be
eligible for PCS funds for this reassignment.
2(d) The Agency restored 250 hours of sick leave to the Complainant
effective payperiod 3 (1/18/97 - 2-1-97).
2(e) The Agency restored 80 hours of annual leave to the Complainant
effective payperiod 3 (1/18/97 - 2-1-97).
2(f) [The] Deputy Program Director for Air Traffic Resource Management,
will work with the Complainant to jointly develop an Individual
Development Plan (IDP). The IDP will be completed within 60 days of
this signed Agreement.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased. The agency shall resolve the matter and
respond to the complainant, in writing. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant 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 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Complainant, by letter dated November 17, 2000, alleged that the agency
breached the settlement agreement. Specifically, complainant's letter
of allegation reads:
[On] January 12, 1998, I was assigned to the Washington ARTCC as a
[sic] Operations Manager in August I was re-assigned as Support Manager.
In April I returned to the ATCSCC and was assigned to the Y2K Program
Office as the Air Traffic c [sic] BRT Manger [sic] but was down graded
by the Command Center from a MSS_3 [sic] to a MSS-2. When the Y2K
assignment was over I returned to the ATCSCC and was told that I wo uld
[sic] be the Special Assistant to ATT-2 there was never a 52 cut. The end
of October, 2000 I was re-assigned as a Quality Assurance Staff Specialist
which is thesame [sic] as a facility staff specialist. Not only have I
been demoted in grade I have also been demoted in position and at this
time, I am in a position lower than I was when the initial complaint
was filed.
In its decision, the agency found that it did not breach the settlement
agreement. On August 14, 1997, complainant wrote a letter to the
agency saying that he �appreciat[ed] all the effort and hard work of
everyone involved in making the position in Oklahoma City available.
Due to personal circumstances, [he] respectfully request[ed] to be
withdrawn from the duty assignment at the FAA Academy.� In response to
complainant's request, the agency reassigned complainant to the position
of Air Traffic Control Specialist, FM-2152-15, PD number WA-N056, in
the Air Traffic Operations Program, Air Traffic Tactical Operations
(ATO-200) in Herndon, Virginia. Complainant was notified by letter on
March 5, 1999.
Complainant argues on appeal that he made the August 14, 1997 request only
after speaking to the Division Manager of the Academy who expressed a very
negative attitude pertaining to the FAA creating a position specifically
for him as a result of an EEO resolution. Complainant believed that the
assignment would have been hostile and less than a model work environment.
The agency, in good faith, tried to comply with the settlement agreement.
But for complainant's intervention, complainant would have been
assigned to the position in Oklahoma City. Therefore, complainant
has not shown that the agency is in breach of provision 2(c) of the
settlement agreement. Moreover, complainant has not alleged that the
agency has breached any other provision of the settlement agreement.
The agency's decision finding no breach of 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
October 11, 2001
__________________
Date