01A05862_r
04-25-2002
Ronald Montague, Complainant, v. Norman Y. Mineta Secretary, Department of Transportation, Agency.
Ronald Montague v. Department of Transportation
01A05862
April 25, 2002
.
Ronald Montague,
Complainant,
v.
Norman Y. Mineta
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A05862
Agency No. 2992006
DECISION
Complainant filed a timely appeal with this Commission after the agency
failed to issue a final decision on his claim that the agency failed to
abide by the terms of the February 28, 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 settlement agreement provided, in pertinent part, that:
(2c) [Complainant] accepts Air Force Program Manager job under [agency
official], with MSS-4 ATC 12 pay until HQ MSS is established, and then
HQ MSS applies unless MS-4 ATC 12 is more money. The reassignment is
effective 2/28/99; and
By entering into this Agreement, the aggrieved person and the Agency
acknowledge that this Agreement is the result of mediated discussions
consisting of mutual considerations, and contains the complete and
entire agreement by which the parties are bound.
By letter dated January 25, 2000, complainant alleged settlement breach,
and requested that the agency implement its terms. Specifically,
complainant alleged that the agency breached the settlement agreement by
failing to grant him Controller Incentive Pay (CIP) after he transferred
to the new Air Force Program Manager position identified in the agreement.
Complainant claimed that he should be granted CIP pay because agency
officials assured him during settlement negotiations that post-transfer
pay would be no less than pre-transfer pay, which included CIP.
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).
Complainant contends that since the agency paid him for CIP in his
pre-transfer position, he should also receive CIP pay in his new position.
Nonetheless, complainant acknowledges that CIP �has never been available
to employees in the post-transfer job� specified in Provision (2c).
Moreover, complainant further acknowledges that the �settlement is
silent as to whether [complainant] was intended to receive CIP after
transfer(ing)� to the new position.
Upon review, we find the language of Provision (2c) to be plain and
unambiguous and find nothing in the agreement that provides complainant
with CIP in his post-transfer position. Consequently, we find no breach
of the agreement.
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 25, 2002______________
Date