01997078
03-27-2001
Jerry L. Cearley, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Jerry L. Cearley v. Department of Transportation
01997078
March 27, 2001
.
Jerry L. Cearley,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01997078
Agency No. 5985019B
DECISION
Jerry L. Cearley (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated October 29, 1999, finding that
it was in compliance with the terms of the February 6, 1998 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
The Agency agrees to temporarily promote the Complainant to a specialist
position in the Training Department of the Houston Air Route Traffic
Control Center at the FG-15 Step 9 level for a period of two (2)
years effective the first pay period of calendar year 1998. The Agency
warrants that such position is a position which qualifies for calculation
of Complainant's high-3 years of service for purposes of retirement
benefits, and as such will be figured at the FG-15 level and applicable
step at the time of retirement.
By letter to the agency dated July 13, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that when the agency implemented a new pay plan, it failed to
maintain his grade level of FG-15, Step 9. Complainant noted that other
FG-15, Step 9 employees were converted directly from this position to
the new corresponding MSS-2 position (Manager, Supervisor and Support
Staff Specialist pay plan), while he was first converted back to a FG-14
position, and then converted to an MSS-2 position, resulting in a loss
of $4,249.00 per year.
In its October 29, 1999 FAD, the agency concluded that it had
substantially complied with the terms of the settlement agreement.
Specifically, the agency noted that when the settlement agreement was
signed in February 1998, the new pay plan was not in existence and
complainant was promoted to a FG-15, Step 9 position. The new pay plan
was then implemented in May 1999 and it required that all employees
on temporary promotion be placed back in their positions of record,
retroactive to October 1, 1998. Complainant's position of record was an
FG-14 position. He was therefore placed back into that position, and
then converted over to the new pay plan. The agency noted that every
employee who was on a temporary promotion at the time of the conversion
was treated in this manner and that none lost time in the position or
pay during the transaction.
On appeal, complainant acknowledges that the agency correctly described
the pay conversion process. He argues, however, that the settlement
agreement specified that he should be paid as a FG-15, Step 9 for two
years and notes that the agreement did not include an exception for
a possible change in pay plans. He argues that he should have been
converted in the same manner as every other FG-15, Step 9. Finally,
he states that he received a letter from the agency stating that he had
been overpaid and that he sent the agency a check for $3,235.79 for back
pay from October 1998 through May 1999. Complainant notes that while he
once requested specific performance, he now requests that his complaints
be reinstated.
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 instant case, in return for withdrawing his complaints and appeals,
complainant was to be promoted to a specialist position, receiving the
same pay as other FG-15, Step 9 employees, for a period of two years.
If the agency intended that this agreement would be subject to agency-wide
changes in the treatment of employees with temporary promotions,
it should have added such a provision to the agreement. It did not
do so. Accordingly, we find that the agency breached the settlement
agreement when it failed to maintain complainant's pay at the same pay
rate as other FG-15, Step 9 employees for the required two year period.
We therefore REVERSE the FAD and, as requested by complainant, REMAND
this matter to the agency for reinstatement of the complaints from the
point at which processing ceased.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ORDERED to reinstate the settled complaints from the point
processing ceased and to thereafter process the complaints in accordance
with Part 1614 regulations. Within thirty (30) calendar days of the
date this decision becomes final, the agency shall notify complainant
in writing that it has reinstated the settled complaints and that it
will process the settled complaints in accordance with EEO regulations.
A copy of the letter notifying complainant of the reinstatement of his
EEO complaints should be provided to the Compliance Officer, as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
March 27, 2001
Date