Ruben C. Foley, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 17, 2002
01A23020 (E.E.O.C. Sep. 17, 2002)

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