01990596_r
10-17-2001
Joel Schaefer, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Joel Schaefer v. Department of Transportation
01990596
October 17, 2001
.
Joel Schaefer,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01990596
Agency No. 4-98-4099B
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated August 28, 1998, finding that it was in compliance
with the terms of the July 31, 1997 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 FAA will provide equipment as reasonably necessary to develop a
system that will enable the Complainant to input data, compile reports
and perform other keyboarding functions as the duties of his position
as a Physical Security Specialist may require. This equipment may
include but is not necessarily limited to speech recognition software.
In addition, the FAA will provide the necessary resources to install
this system at Complainant's principal duty station as well as provide
technical assistance and training for its use;
Complainant shall be provided priority consideration for the next
opening available in the Great Lakes Region for Course Number 00026;
Performance elements and expectations for Complainant's duties as
a Physical Security Specialist shall be provided by Complainant's
supervisors following a full discussion of Complainant's thoughts and
concerns over those issues;
No retaliation or reprisal shall be taken by the FAA as a result of
complainant's participation in this settlement agreement.<1>
By letter to the agency dated August 12, 1998, complainant alleged
that the agency breached the settlement agreement, and requested that
the agency reinstate his underlying claims. Specifically, complainant
alleged that the agency failed to comply with the agreement when it
engaged in reprisal by refusing to provide medically-requested work
accommodations; created a hostile work environment; and attempted the
constructive discharge of complainant.
In its August 28, 1998 final decision, the agency found that it complied
with the terms of the agreement. Specifically, the agency found that
the agency's actions were warranted and were not undertaken in reprisal
for complainant's prior EEO activity.
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).
Upon review, the Commission finds that the agency complied with the terms
of the settlement agreement. Regarding complainant's claim of reprisal,
the Commission has held that an allegation of breach that asserts reprisal
or further discrimination in violation of a �no reprisal� clause in a
settlement agreement, should be processed as a new, separate complaint
and not as a breach allegation. See Parker v. Department of the Army,
EEOC Request No. 05960025 (August 29, 1996); Bindal v. Department of
Veterans Affairs, EEOC Request No. 05900225(August 9, 1990); 29 C.F.R. �
1614.504(c). In this matter, complainant's claim that the agency
engaged in reprisal in violation of the agreement when it refused to
provide medically requested work accommodations, created a hostile work
environment, and fostered the constructive discharge of complainant,
should be pursued as a new, separate complaint.<2> Moreover, to the
extent that complainant alleges a substantive breach of provision 4,
we note that the Commission previously determined that the agency has
complied with this provision by providing complainant with requested
accommodations and resources specified by the terms of the agreement.
Schaefer v. Department of Transportation, EEOC Appeal No. 01982743
(May 17, 1999). Consequently, the Commissions finds no breach of the
settlement agreement.
Accordingly, the agency's finding that it complied with the terms of
the settlement agreement is AFFIRMED for the reasons set forth herein.
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 17, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
_______________________
1In reference to pertinent provisions of the settlement agreement,
this decision retains the original enumeration of the agreement for the
purpose of clarity and consistency.
2Complainant is advised that if he wants to pursue the matters purportedly
taken in reprisal for entering into the settlement agreement, he should
initiate contact with an EEO Counselor, if he has not already done so.