01986729
02-15-2000
Leonard A. Mobley, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Leonard A. Mobley v. Department of Transportation
01986729
February 15, 2000
Leonard A. Mobley, )
Complainant, )
)
v. ) Appeal No. 01986729
) Agency No. DOT-6-97-6061B
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a
final decision, dated February 23, 1997.<1> The Commission accepts the
complainant's appeal in accordance with EEOC Order No. 960, as amended.
For the reasons stated below, the Commission reverses the decision's
finding that the agency did not breach a term of the settlement agreement
between the parties.
The parties entered into a settlement agreement, signed by agency
officials on June 29, 1993, and by the complainant on July 2, 1993.
Therein, the complainant agreed to withdraw his complaint of racial
discrimination filed on March 23, 1992, in exchange for the agency's
promises that the complainant would be:
(2A) reassigned to Manager, Facility Operations Branch, GM-2152-15,
effective October 17, 1993;
(2B) nominated for the Executive School;
(2C) provided training and/or briefings on Quality-Through-Partnership
(OTP), the NATCA Contract, and the NAATS Contract; and
(2D) considered for promotion and placement selection, free of any
discrimination based upon non-merit factors or reprisal, for positions
that he bids and/or expresses interest in and meets qualification
requirements. Paragraph 2D(1) also specified that the agency would,
as to vacancies covered by the Air Traffic National Selection System,
poll the complainant to determine whether or not he wished to express
interest in the specific vacancy. Paragraph 2D(2) further specified,
as to vacancies within the Western-Pacific Region, that the complainant
would receive specified information about the agency's selection process,
including the rationale and basis for the selection and the areas in
which the complainant needed to improve to increase his chances for
future selection.
In paragraph (2E) the agency promised that the Air Traffic Division
Manager would ensure that the complainant was properly considered and that
the selection documentation was complete, accurate, and fully supported
by information of record. Paragraph 6 of the agreement concluded in
relevant part:
Pursuant to 29 C.F.R. �1614.504, the parties further agree that if the
agency does not carry out, or rescinds, any action specified by the terms
of this agreement for any reason not attributable to the acts or conduct
of the Complainant the Agency shall upon Complainant's written request,
reinstate the complaint for further processing from the point processing
ceased under this agreement or implement the terms of the agreement.
By letter of March 21, 1997, the complainant notified the agency's
Departmental Office of Civil Rights that the agency had not carried
out any of the terms of the agreement other than his reassignment.
The complainant informed the Civil Rights Office that now the agency
was rescinding his reassignment as well. The complainant requested
reinstatement of his March 23, 1992 complaint. The complainant also
alleged that the reassignment was the culmination of numerous ongoing
examples of unequal treatment and reprisals based on his race and color
and EEO activity, including his advocating for diversity at all levels
of the workforce. The complainant pursued the latter allegation in an
EEO complaint, filed September 8, 1997, that is the subject of a pending
request for reconsideration, Mobley v. Department of Transportation,
EEOC Request No. 05990229.
After waiting almost one year, on February 23, 1998, the agency responded
to the complainant's allegations of noncompliance. The decision
acknowledged that the complainant's reassignment from his position of
Manager, Facility Operations Branch, to Manager, Airspace Branch, was not
due to the complainant's acts or conduct. However, the decision held that
the complainant's reassignment did not violate the settlement agreement
because there was no provision in the agreement which provided that the
complainant would be able to keep his position of Manager, Facility
Operations Branch, for any given period of time. Thus, the decision
concluded, the agency had not breached paragraph 2A of the agreement.
The decision also found that the complainant failed to timely allege
noncompliance with paragraphs 2B, 2C, and 2D of the agreement because
the complainant indicated in a May 2, 1997 letter that he viewed the
agency as not complying with those provisions as early as July 1994
(paragraph 2C) and mid-1995 (paragraph 2B and 2D).
On appeal, the complainant informs the Commission that the agency
dismissed his current allegations of racial discrimination and
retaliation because they were pending before the agency as settlement
breach allegations, but then failed to address the discrimination
and retaliation allegations in its settlement agreement decision.
The complainant also contends that the agency's settlement agreement
decision failed to address the paragraph 6 provision set forth above
which the complainant believes governs this matter.
In response to the complainant's appeal, the agency contends that the
complainant's breach allegation are untimely because they were not raised
with an EEO counselor within 45 days of the events which the complainant
alleges constitute breach.
ANALYSIS AND FINDINGS
The question of whether a breach of a settlement agreement has occurred
is one of contract interpretation. The Commission has held that a
settlement agreement between an EEO complainant and a federal agency
is a contract subject to ordinary principles of contract interpretation
and construction. Diyan v. United States Postal Service, EEOC Request
No. 05950032 (February 23, 1996). Generally, when interpreting the
language of settlement agreements, the Commission applies the "plain
meaning" rule, that is, when the settlement agreement language is plain
and unambiguous on its face, its meaning is derived from the agreement's
terms without consideration of evidence from outside of the agreement.
Id. The Commission makes determinations about the parties' intent in
accordance with the plain, ordinary and common sense of the words used
in the agreement. Klein v. Department of Housing and Urban Development,
EEOC Request No. 05940033 (June 30, 1994).
The Commission finds that paragraph 2A required the agency to reassign
the complainant to the position of Manager, Facility Operations Branch,
GM-2152-15, effective October 17, 1993. It is undisputed that the
agency initially reassigned the complainant as promised. The Commission
repeatedly has held that where an individual bargains for a position
without any specific terms as to the length of service, it would be
improper to interpret the reasonable intentions of the parties to
include employment in that exact position ad infinitum. See, e.g.,
Elliott v. United States Postal Service, EEOC Request No. 05950615
(December 13, 1995).
However, the Commission finds that the parties expressly agreed in
paragraph 6 of the settlement agreement that if the agency "rescinds
any action specified by the terms of this agreement for any reason not
attributable to the acts or conduct of the Complainant the Agency shall
upon Complainant's written request, reinstate the complaint for further
processing from the point processing ceased . . . ." The Commission
also finds, as the agency acknowledged in its February 23, 1998
decision, that the complainant was reassigned from his position of
Manager, Facility Operations Branch, for a reason other than his acts
or conduct. The Commission further finds that the complainant timely
requested reinstatement of his complaint within 30 days of the date
the agency effectively rescinded the action required by paragraph 2A
of the agreement, that is, on or about March 19, 1997. Accordingly,
the Commission finds that the agency was required by paragraph 6 of the
agreement to reinstate the complainant's March 23, 1992 complaint for
further processing from the point processing ceased. Because the agency
did not reinstate the complainant's complaint upon request, the Commission
finds that the agency violated paragraph 6 of the settlement agreement.
In determining the proper remedy of the agency's breach, the Commission
observes that the record does not contain any evidence that the agency
substantially complied with the remaining terms of the settlement
agreement, notwithstanding its breach of paragraph 6. In particular,
the record does not demonstrate that the complainant received the
executive training, the briefings and advice for increasing his chances
for promotion, and the consideration for unannounced vacancies for
which he had bargained in paragraphs 2B, 2C, 2D and 2E. Accordingly,
to remedy the breach the Commission orders the agency, pursuant to
29 C.F.R. �1614.504(c), to reinstate the complainant's March 23, 1992
complaint from the point that processing ceased.
Because the Commission orders reinstatement of the complainant's complaint
due to the agency's breach of paragraph 6 of the settlement agreement,
the Commission does not need to address the complainant's remaining
breach allegations. In addition, the Commission does not need to remand
the matter to the agency for investigation as to whether the agency
additionally violated the agreement by reassigning the complainant in
bad faith on or about March 19, 1997. See Elliott v. United States
Postal Service, EEOC Request No. 05950615 (December 13, 1995).
The agency contends on appeal that the complainant's breach allegations
are untimely because they were not raised with an EEO counselor within
45 days of the events which the complainant alleges constitute breach.
However, there is no requirement that an individual contact an EEO
counselor regarding breach of settlement claims. See 64 Fed. Reg. 37,644,
37,660 (1999) (to be codified at 29 C.F.R. �1614.504(a)). Moreover,
as indicated above, the Commission finds that the complainant timely
requested reinstatement of his complaint within 30 days of the date the
agency effectively rescinded the action required by paragraph 2A of the
agreement, that is, on or about March 19, 1997.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
February 23, 1997 decision and ORDERS the agency on REMAND to reinstate
the complainant's March 23, 1992 complaint for further processing from
the point that processing ceased.
ORDER
The agency is ORDERED to reinstate the complainant's March 23, 1992
complaint for further processing from the point that processing ceased.
The agency is ORDERED to inform the complainant and the Compliance
Officer referenced below in writing that it has complied with paragraph
1 of this Order.
The agency shall complete the actions ordered in paragraphs 1 and 2 of
this Order within thirty (30) calendar days of the date this decision
becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
February 15, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that the
decision was mailed to the complainant, the complainant's representative
(if applicable), and the agency on:
DATE Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.