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