01A23020
09-17-2002
Ruben C. Foley, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Ruben C. Foley v. Department of Transportation
01A23020
September 17, 2002
.
Ruben C. Foley,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A23020
Agency No. 4-00-4083
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated, finding that it was in compliance
with the terms of the July 20, 2001 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 settlement agreement provided, in pertinent part, that:
The agency will offer [Complainant] the position of a temporary
appointment as an Air Traffic Control Specialist (ATCS) at the Minneapolis
Air Route Traffic Control Center, Farmington, Minnesota effective August
6, 2001. This temporary appointment shall not exceed sixty (60) days.
During the period of this temporary appointment, the Complainant will
be assigned only administrative/classroom duties as directed by Agency
supervisors/managers. It is understood that during the period of this
temporary appointment, the Complainant must attend an ATCS class to
be conducted in Oklahoma City, Oklahoma. That class is scheduled
to commence on August 7, 2001. In order to be granted a permanent
appointment with the Agency (see paragraph 6), the Complainant must
successfully complete that class. It is understood that commencing
August 6, 2001, the Complainant's salary will be based on the first
ex-PATCO controller hired at Minneapolis Center in 1998 [named employee],
after taking into account all cost of living, locality, and other
increases, the Complainant would have received had he been hired on May
26, 1998. It is further understood that the period of this temporary
appointment may be extended in the event of circumstances beyond the
Complainant's control; for example, natural disaster or cancellation of
the ATCS class;
It is the goal of the Agency to provide the Complainant with the position
of Air Traffic Control Specialist at the Minneapolis Air Route Traffic
Control Center on a permanent basis. However, in order to be provided
a permanent appointment, the Complainant must complete the requirements
for both a medical and a security clearance. Should the Complainant
fail to complete the requirements for either a medical or a security
clearance as described above, the Complainant will not be provided a
permanent appointment and his employment with the Agency will cease at the
termination of the temporary appointment described in paragraph 3 above.
It is understood that the period of this temporary appointment may be
extended in the event of circumstances beyond the complainant's control;
The Agency will make a total payment to the Complainant of One Hundred
Forty Six Thousand, Five Hundred ($146,500) Dollars. That amount
shall be reported as income to the Complainant on a Form 1099.
No income or employment taxes shall be withheld from this payment.
The determination of tax liability, if any, is a matter solely between
the Complainant and the Internal Revenue Service and/or other state and
local tax authorities. Issuance of this check shall be held in abeyance
until a determination has been made regarding whether the Complainant
can be provided a permanent appointment at the Minneapolis Air Route
Traffic Control Center (following the grant of both a medical and a
security clearance) as described above. However, it is understood
that this amount shall be provided to the Complainant whether or not
he is ultimately successful in obtaining both a medical and a security
clearance before the termination of his temporary appointment;
Assuming that the Complainant is able to obtain both a medical and a
security clearance as described above, he will be placed in a permanent
position at the Minneapolis Air Route Traffic Control Center effective
May 26, 1998. In that event, the Agency will contribute an additional
amount not to exceed Thirty Thousand ($30,000.00) Dollars toward the
payments of any mandatory contributions (i.e., Medicare, FICA, retirement
etc.) that would have ordinarily been required to have been made by the
Agency for that period. All other mandatory contributions will be made
by the Complainant including any additional amounts that may be owed
by the Agency. Complainant's contributions will be deducted from the
amount described in paragraph 9 above. It is intent of this paragraph
to provide the Complainant with the service time and seniority he would
have accumulated had he actually been employed by the Agency since May
26, 1998. However, any and all additional benefits to which he might
have been entitled, including but not limited to the accumulation of
sick and annual leave, back pay, interest, health and life insurance,
etc., are expressly waived.
By letter to the agency dated March 19, 2002 and on appeal, complainant
alleged that the agency breached the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that the agency breached the settlement agreement
when:
The agency failed to pay complainant $146,500, as provided in provision
9;
The agency failed to pay up to $30,000 toward mandatory contributions
for complainant for placement in the position from May 26, 1998, as
provided in provision 10;
The agency erroneously categorized complainant as a Development 3,
AT-2152-KG, instead of a Certified Professional Controller, AT-2152-KH;
The agency failed to provide complainant with the option of electing
to stay under the CSRS retirement system, instead of converting him to
the FERS system; and
In May 2002, the agency subjected complainant to discrimination on the
basis of reprisal when it reduced his pay.
In a letter dated March 26, 2002, the agency only addressed claims (c)
and (e). The agency stated that it would grant complainant's request to
remain in the CSRS retirement system, and rejected complainant's request
to change his position grade.
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).
Claims (a) and (b)
In claims (a) and (b), complainant alleged that the agency failed to
pay him the promised sum of $146,500 and up to $30,000 in mandatory
contributions. However, upon review, we are unable to ascertain whether
or not the agency paid the promised amounts to complainant. We note
that there is no evidence or documentation in the record regarding the
payment of these sums. Moreover, despite complainant's breach claim, the
agency failed to respond to claims (a) and (b), and is silent on appeal.
Consequently, we REMAND this matter to the agency for a supplemental
investigation of these matters in accordance with the ORDER below.
Claim (c)
The record reveals that on November 29, 2001, the agency placed
complainant in a permanent Air Traffic Control Specialist position at
the Minneapolis Air Route Traffic Control, as promised by provision 10.
However, complainant contends that the agency placed complainant at
the KG grade level, instead of the KH grade level associated with all
employees hired in his position after October 1, 1998. After a review
of the record, we are unable to ascertain whether or not the agency
placed complainant in the appropriate grade level categorization for the
promised position. We note that there is no documentation or evidence
in the record regarding the grade level assignment for complainant's
promised Air Traffic Control Specialist position. Consequently, on
REMAND, the agency must supplement the record with documentation and
evidence regarding this matter in accordance with the ORDER below.
Claim (d)
Finally, with regard to claim (d), complainant contends that the agency
failed to provide him with the option of remaining in the CSRS retirement
system. As the agency agreed to grant complainant's request to remain
in the CSRS retirement system, we need not address this alleged breach
further herein.
Claim (e)
The Commission notes that in claim (e), complainant alleges that the
agency engaged in discrimination on the basis of reprisal when it
reduced his pay. EEOC Regulation 29 C.F.R. � 1614.504(c) provides
that claims that subsequent acts of discrimination violate a settlement
agreement shall be processed as separate complaints. We note that in
a letter dated June 21, 2002, complainant notified the Commission that
this claim had been raised with an EEO Counselor as a separate claim,
which we determine to be the appropriate procedure to process this claim.
Accordingly, claims (a) - (c) are REMANDED to the agency for a
supplemental investigation and further processing according to the
ORDER below.
ORDER
The agency is ORDERED to undertake the following actions:
The agency shall undertake an investigation regarding complainant's
breach claims (a) - (c);
The agency shall supplement the record with all documentation, including
affidavits, pertaining to breach claims (a) - (c);
Thereafter, the agency shall issue a final decision specifically
addressing complainant's breach claims and its compliance with the
provisions of the settlement agreement, with appeal rights to the
Commission.
The supplemental investigation and issuance of the final decision must
be completed within forty-five (45) calendar days of the date this
decision becomes final. A copy of the final decision must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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