01a52059
04-21-2005
Myra Bulis, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Myra Bulis v. Department of Transportation
01A52059
April 21, 2005
.
Myra Bulis,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A52059
Agency Nos. DOT-1-96-1145; DOT-1-97-1054; DOT-4-98-1038
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated December 2, 2004, finding that it was in compliance with
the terms of a December 9, 1999 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The December 9, 1999 settlement agreement provided, in pertinent part:
(a) to reassign Complainant to the position of New England Intermodal
Safety Program Manager, Massachusetts Division (Federal-aid) with no
loss of grade, pay or benefits;
(b) in the event that the Massachusetts State Director position
is classified as a Grade 14 prior to the expiration of the TEA-21,
Complainant's New England Intermodal position will be upgraded to
Grade 14.<1>
(c) to provide the Complainant with the option, in her sole discretion,
of working in the above-mentioned position on a part-time basis (part-time
shall be considered at least 20 hours per week);
(d) to ensure that the New England Intermodal position will exist at
least until the expiration of TEA-21 on or about September 30, 2003,
or unless Congressional action requires otherwise and in the event that
the New England Intermodal position is abolished at any time the Federal
Highway Administration shall use its best efforts to reassign Complainant
to a position of the same grade and pay.
The record reflects that on October 3, 2003, complainant filed
a formal EEO complaint, claiming breach of the December 9, 1999
settlement agreement. Specifically, complainant alleged that the agency
intentionally withheld the upgrade of the Massachusetts State Director's
position which would have had the effect of upgrading her position.<2>
In its December 2, 2004 decision, the agency found no breach. The agency
first noted that complainant suspected settlement breach as early as
2002, citing an August 6, 2002 email to an agency official. The agency
noted that the settlement agreement did not provide information regarding
where, when and who complainant should contact regarding a breach claim.
The agency therefore determined that when complainant contacted an EEO
Counselor on July 1, 2003, regarding a breach claim, the agency construed
the breach claim as timely filed.
The agency then noted that complainant stated that pursuant to the
instant settlement agreement, the agency agreed to upgrade her position
in the Federal Highways Administration if the State Director position in
Massachusetts was upgraded at any time before the expiration date for
TEA-21 (which the agency stated was September 30, 2003). The agency
further noted that complainant asserted that the agency had insisted on
this �sunset provision� because it had no intention of upgrading the
Massachusetts State Director position until after October 1, 2003.
According to the agency, the Massachusetts State Director's position was
not advertised and there is no plan to upgrade the position. Complainant
contended that the agency acted in bad faith, on the grounds that it
knew that it would not upgrade the State Director position until after
September 30, 2003; however, the agency asserted that the language of
the agreement is unambiguous, and clearly states a condition precedent:
that �in the event that the Massachusetts State Director position is
classified . . . complainant's . . . position will be upgraded.�
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 O 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, the settlement agreement provided that �in the
event that the Massachusetts State Director position is classified as
a Grade 14 prior to the expiration of TEA-21, complainant's New England
Intermodal position will be upgraded to Grade 14.� (emphasis added). The
Massachusetts State Director position was not classified as a Grade 14,
and therefore complainant's position was not accorded a GS-14 upgrade,
as well. As noted above, complainant contends that the agency entered
the agreement in bad faith, asserting that the agency knew that the
State Director position would not be classified as a Grade 14 during
the relevant time period.
The record reveals that the Massachusetts State Director position was not
classified as a Grade 14, as late as July 2003. Further, it appears that
this position was not scheduled to be classified as a Grade 14 until after
the expiration of TEA-21. While complainant contends that the agency
knew this prior to entering the agreement, and therefore acted in bad
faith, the Commission disagrees. The record does not contain evidence
that supports complainant's assertions. We find that the settlement
language requires that the Massachusetts State Director position be
re-classified prior to the expiration of the TEA-21 before the agency
was obligated to upgrade complainant's position. In the absence of the
Massachusetts State Director upgrade under these conditions, the agency
was not required to upgrade complainant's position, and did not breach
the agreement when it failed to do so.
Accordingly, the agency's decision finding no breach was proper and
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
April 21, 2005
__________________
Date
1The record reflects that the term �TEA-21"
is the Reauthorization Bill for the Federal Highway Administration.
2The Commission notes that while a copy of the October 3, 2003 complaint
is absent from the record, we find there is sufficient information to
make a determination regarding breach.