0120111326
05-19-2011
Ranee B.L. Morrison, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Ranee B.L. Morrison,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120111326
Agency No. 2010-23058-FAA-05
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency determination (FAD) dated November 24, 2010, finding that it was
in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Air Traffic Control Specialist at the Agency’s Baton Rouge ATCT/TRACON
facility in Baton Rouge, LA.
Effective September 24, 2009, the Agency demoted Complainant from
her probationary position of Frontline Manager, Air Traffic Control
Specialist, to the non-managerial position of Air Traffic Control
Specialist. Believing that the Agency subjected her to unlawful
discrimination, Complainant contacted an Agency EEO Counselor to initiate
the EEO complaint process, and filed an EEO complaint which included
the demotion. On April 1, 2010, Complainant and the Agency entered
into a settlement agreement to resolve the complaint. The settlement
agreement provided, in pertinent part, that:
(1) Within 10 days from the date this agreement is fully executed,
the Agency will submit to Human Resources a Standard Form 50 for the
Aggrieved Party, extending her assignment to the Temporary First Line
Manager at Baton Rouge ATCT (BTR) until 10/3/09. Effective October 4,
2009, the Aggrieved returns to the bargaining unit and her duties as
controller;
(2) A written notification will be sent to the Aggrieved Person once
the SF-50 is executed which reflects the extension of the Aggrieved’s
assignment to the Temporary First Line Manager position in Baton Rouge,
until October 3, 2009;
(3) Aggrieved will retain her current pay, pay plan (AT), Grade
(GI), Step (00), pursuant to the guidelines set forth in HRPM Core
Comp-2.13c, Pay Retention in the Core Compensations Plan and pursuant
to the Collective Bargaining Agreement; and
(4) Within 60 days from the date this signed agreement, the Agency
will pay the Aggrieved Party a lump sum of $590.04.
According to Complainant, on or about August 31, 2010, the Agency’s
Office of Civil Rights informed her that the Agency could not comply
with the settlement agreement. By letter to the Agency dated September
24, 2010, Complainant alleged that the Agency breached the settlement
agreement, and requested that it be implemented.
In its November 24, 2010 FAD, the Agency conceded that it did not
comply with settlement agreement terms 1 and 3, as numbered above.
The Agency wrote therein that terms 1 and 3 violated the Agency’s
personnel policy. It did not identify the personnel policy violated,
nor explain the nature of the violation. The Agency also found in the
FAD that term 3 was too vague and ambiguous to enforce. It explained in
the FAD that the settlement agreement does not specify which collective
bargaining agreement (CBA) is being referenced, e.g., the CBA applicable
to Complainant’s prior position as a support specialist; the CBA
applicable to her placement as a controller prior to “October 1,
2009”; or the CBA applicable to her placement as a controller after
October 4, 2009. It also wrote that the pay retention rules in the
HRPM are inconsistent with the pay retention rules in any of these CBAs,
and under any of the rules Complainant would be able to retain her pay,
but not her pay plan, which renders the settlement agreement vague
and ambiguous. The Agency did not supply copies of the HRPM or CBAs,
nor identify the allegedly inconsistent rules and provisions therein.
The Agency found that because it breached the settlement agreement and
could not comply with it, Complainant’s complaint would be processed
from the point processing ceased. The Agency found that it complied
with term 4, and in order to return to the status quo, Complainant was
required to reimburse $590.04 to the Agency.
CONTENTIONS ON APPEAL
Complainant writes that the settlement agreement was carefully negotiated
and drafted by the Agency’s Office of Civil Rights after working
with the Agency’s Legal and Human Resources Departments over a two
month period. Complainant asks that the Commission reverse the FAD and
order the Agency to implement the settlement agreement.
The Agency makes no argument on appeal.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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).
Although settlement agreements normally are binding on the parties, an
agency may not be required to specifically perform on an agreement if
it later learns that the agreement's terms violates a federal regulation
or a CBA. Barnes v. Department of the Army, EEOC Appeal No. 0120063256
(November 9, 2006)(federal regulation); Pyles v. United States Postal
Service, EEOC Request No. 05920044 (April 22, 1992 (CBA).
The Agency explains that it did not comply with terms 1 and 3 because
doing so would violate Agency personnel policy. It does not identify the
personnel policy, explain how it was violated, nor submit an affidavit
from a subject matter expert verifying how a personnel policy would be
violated. The Agency also does not indicate that the personnel policy is
derived from a higher source such as a statute or regulation. In light
of all this, the Agency’s explanation that it cannot implement the
settlement agreement because doing so would violate its personnel policy
is unpersuasive. Similarly, the Agency explains that the pay retention
rules in the HRPM are inconsistent with the pay retention rules in any
applicable CBA, and under all rules, Complainant would be able to retain
her pay, but not her pay plan. Again, the Agency provides no specific
argument, provides no documentation such as copies of the relevant
portions of the HRPM or CBAs, or affidavit from a subject matter expert
to support these claims, making them unpersuasive. We also disagree
with the finding that term 3 of the settlement agreement is too vague
to be enforceable. The applicable CBA is the one for Complainant’s
job she was working in while having retained pay. To the extent the
HRPM Core Comp 2.13c, Pay Retention in the Compensations Plan and the
CBA were inconsistent, compliance would require an attempt to harmonize
their provisions, and if this was not possible, to apply the HRPM, since
the settlement agreement specifically mentioned the applicable provision,
showing an intent to implement it.
The FAD is reversed. The Agency shall comply with the order below.
ORDER
The Agency is ordered to take the following remedial action:
Within 60 calendar days of the date this decision becomes final, the
Agency shall, to the extent it has not already done so, fully comply
with the settlement agreement it entered into with Complainant on April
1, 2010. If Complainant has tendered back to the Agency the $590.04
payment she received under the settlement agreement, full compliance with
the settlement agreement requires the Agency to return these funds to her.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)1
If Complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 77960,
Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 19, 2011
__________________
Date
1 This refers to fees and costs incurred in obtaining compliance with
the settlement agreement.
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0120111326
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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