Martha S. Johnston, Complainant,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionSep 17, 2002
01A13100_r (E.E.O.C. Sep. 17, 2002)

01A13100_r

09-17-2002

Martha S. Johnston, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.


Martha S. Johnston v. Tennessee Valley Authority

01A13100

September 17, 2002

.

Martha S. Johnston,

Complainant,

v.

Craven H. Crowell, Jr.,

Chairman,

Tennessee Valley Authority,

Agency.

Appeal No. 01A13100

Agency No. 0722-98097

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated March 7, 2001, finding that it was in

compliance with the terms of the September 1, 1995 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 September 1, 1995 settlement agreement provided, in pertinent part,

that complainant:

�will be given an opportunity to serve as a dual-rate foreman the next

time both the current dual-rate and regular foreman are absent.�

The record reflects that complainant pursued a breach claim through the

EEO complaint process. An EEO Counselor's Report, dated July 10, 1998,

indicated that complainant alleged that she was denied the opportunity to

serve as a dual-rate foreman and that complainant considered management's

actions to be a �continuing breach of contract that was reached between

[her] and management in September 1995.�

On July 22, 1998, complainant filed a complaint on the matter, alleging

that the agency engaged in unlawful discrimination on the bases of sex

and in reprisal for prior protected activity when:

The agency failed to select her to serve as dual-rate foreman for the

Instrument Mechanic Shop on or about May 1, 1998; and

The agency failed to select complainant to serve as a dual-rate foreman

for the Dry Fly Ash Crew on or about May 15, 1998.

In a March 7, 2001 final decision, addressed complainant's complaint

in terms of whether or not there was a breach of the September 1, 1995

settlement agreement. The agency concluded that it complied with the

terms of the settlement agreement. Specifically, the agency found that

complainant would only be afforded the opportunity to serve as a dual-rate

foreman when both the current rate foreman and the regular foreman were

absent. The agency found that because the absence of both foremen had

not occurred, it had no obligation to allow complainant to serve in the

capacity of dual-rate foreman until then. Further, the agency concluded

that because complainant was moved to another crew that does not have

dual-rating foreman after the settlement agreement was executed, it is

now impractical for the agency to afford her the opportunity to serve in

that capacity. On appeal, the agency argues that it complied with the

terms of the agreement by allowing complainant to serve as dual-rate

foreman in January 1998.

Thereafter, complainant filed the instant appeal, indicating on

the Notice of Appeal, Form 573, that the appeal alleges breach of a

settlement agreement.

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).

As a threshold matter, the Commission determines that upon learning

of complainant's breach allegation, the agency should have processed

the matter in accordance with 29 C.F.R. � 1614.504(a), rather than

as a separate complaint. We note, however, that the agency properly

addressed the breach issue in its decision and the record is sufficient

for the Commission to determine whether the agency breached the settlement

agreement of September 1, 1995.

The agreement's terms mandate that complainant will be afforded �an

opportunity� to serve as a dual-rate foreman the next time both the

current foreman and the regular foreman are absent from their duties. The

agreement clearly stipulates that both foremen must be absent before this

opportunity will be afforded to complainant. Further, the terms of the

agreement provide no assurance that this opportunity will be extended

beyond the duration of that single opportunity. We further note that

there is no indication in the record that both foremen identified in the

settlement agreement had been absent, so as to trigger the affirmative

agency obligation to give complainant the opportunity to serve as a

dual-rate foreman. However, the record nonetheless indicates that in

January 1998, the agency afforded complainant the opportunity to serve as

a dual-rate foreman in the Instrument Mechanic Shop. Consequently, we find

that the agency substantially complied with terms of the agreement when

it allowed complainant to serve in this capacity as dual-rate foreman.

Accordingly, the agency's finding of no breach 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

September 17, 2002

__________________

Date