0120073231
10-30-2009
Christopher R. Thomas, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Christopher R. Thomas,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120073231
Agency No. 200519809FAA04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 15, 2007, finding that it was in
compliance with the terms of the January 5, 2006 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:
2b. Upon reassignment [from the Cleveland Air Route Traffic Control
Center (ARTCC) to the Miami ARTCC], complainant's pay status will be
AT-2152-KF instead of his current pay status as AT-2152-LF. His pay (base
plus locality pay) shall be no less than what he is currently making
at the Cleveland ARTCC. Locality pay will be paid at the current rate
for the Miami area, which is subject to an annual review and possible
change. Thereafter his grade and pay shall be adjusted in accordance
with his ARTCC grade and career level and in accordance with applicable
pay rules.
On April 25, 2007, complainant alleged that the agency was in breach
of the settlement agreement, and requested that the agency specifically
implement its terms. Specifically, complainant alleged the following:
the settlement agreement was signed "with the understanding and in
confidence" that once he became a Certified Professional Controller
(CPC), his grade and pay would be adjusted in accordance with the
contract ("Green Book")1 pay scale that was in effect at the signing of
the agreement. However, because complainant was not fully certified at
the Miami ARTCC until after the "White Book"2 pay scale became effective,
once he became a CPC the agency assigned his grade, career level and
pay according to the White Book pay scale (which did not even exist
at the time of the agreement). Complainant stated that the intent of
the agreement was to preserve his potential career salary because his
training at the Cleveland ARTCC was thwarted and career progression
held up for over two years due to alleged discriminatory practices.
Complainant also noted that during settlement negotiations, his pay
was specifically discussed in reference to the Green Book pay scale.
Complainant additionally contended that had no discrimination taken
place at the Cleveland ARTCC, he would have been certified under the
Green Book pay scale and would be earning approximately $30,000.00 more
annually than he was currently earning under the White Book pay scale.
Final Agency Decision
In its June 15, 2007 FAD, the agency addressed complainant's argument
concerning what he believed was the intent of the agreement, noting
that 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" which 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. The FAD then found that based on the language
of the settlement agreement, the agency had complied with Section 2,
subparagraph b of the agreement.
The FAD addressed complainant's allegation that due to alleged
discrimination at the Cleveland ARTCC, his training and career progression
were stalled, causing him to fully certify after the less desirable
White Book pay scale went into effect. In response, the agency noted
that the argument that discrimination at the Cleveland JRTCC thwarted
his career path had not been substantiated, directing complainant to
Paragraph 4 of the settlement agreement:
4. This agreement is reached without final judgment as to the merits of
the complaint and shall in no way constitute an admission of liability,
wrongdoing, or discrimination by the agency, its managers, supervisors,
or the Complainant.
The FAD noted that complainant also alleged that Paragraph 13 of the
settlement agreement was breached. Paragraph 13 states:
13. No modification or waiver or any of the terms of this agreement
shall be valid unless in writing executed by the parties in dispute and,
where applicable, their advisors.
The FAD found that based on the compliance report submitted by the FAA,
dated March 27, 2006, it had been determined that the agency complied
with all conditions of the settlement agreement. Therefore, the FAD
concluded that the terms of the settlement agreement were not breached.
CONTENTIONS ON APPEAL
On appeal, complainant, through counsel, contends that under the terms
of the settlement agreement, the agency was bound to pay complainant
under the pay tables contained in the Green Book. He further states
that since the agency has determined that complainant is only entitled
to compensation under the White Book, at a substantially lower rate of
pay, the agency has effectively modified the terms of the settlement
agreement. Complainant also notes that as part of the settlement
package, complainant provided an attachment of the pay tables (under
the Green Book) illustrating the exact rate of pay at which the agency
intended to compensate him when he did eventually become fully certified.
The agency reiterates its position that it is in compliance with the
settlement agreement.
FINDINGS AND 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. 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, we find that the agency is in compliance with
the settlement agreement. It is clear that if complainant had been
certified at the time he entered into the agreement, complainant would
have been compensated according to the Green Book pay tables. However,
he was not certified. Complainant claims that this was because of
discrimination, but as the agency points out, there has been no finding
that complainant was the victim of discrimination, as complainant
settled his EEO complaint. Complainant was not certified until the
new White Book rules were already in effect. The Commission finds that
Paragraph 2b of the settlement agreement allowed for the possibility that
complainant's exact rate of compensation could change, by noting that
"applicable pay rules"3 would determine how complainant's grade and pay
would be "adjusted." The agency and complainant did not specify that
complainant would be guaranteed a specific dollar amount for his salary.
The parties merely agreed that his pay status would be "AT-2152-KF"
and "no less than what he is currently making at the Cleveland ARTCC."
There is no indication that complainant's salary is less than what he was
making at the Cleveland ARTCC when he entered the settlement agreement.
As to complainant's argument that the parties discussed the Green Book
during negotiations, and that as part of the settlement package, he had
provided an attachment consisting of the pay tables (per the Green Book),
we note that the settlement agreement itself fails to note that there
are attachments which are part of the agreement. Moreover, paragraph
12 states: "The agreement consists of mutual considerations and contains
the complete and entire agreement by which the parties are bound."
Finally, there is no evidence that the agency entered into the agreement
in bad faith, namely, knowing (but not disclosing) that the Green Book
would be trumped by the White Book by the time complainant was certified,
which would result in complainant receiving a significantly lesser salary
than what the agency knew complainant expected to receive. Nor is there
evidence that the agency changed to the White Book standards in order
to prevent complainant from receiving the higher salary he expected.
CONCLUSION
According to the Commission's review of the record, the agency's
determination of compliance with the agreement was proper and is AFFIRMED
for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 (S0408)
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 (Z1008)
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
____10/30/09______________
Date
1 The "Green Book" refers to the 2003 Collective Bargaining Agreement.
2 As complainant describes it, the White Book was a new set of work
rules that were "unilaterally imposed" on FAA employees in 2006.
Complainant states that the validity and effect of the 2006 work rules
versus the 2003 Collective Bargaining Agreement is currently in dispute.
3 Complainant argues on appeal that the settlement agreement provides
that his pay should be in accordance with the "applicable pay rules"
in existence at the time the agreement was executed [emphasis added].
However, that is not what the agreement states. Paragraph 2b, in
fact, simply states: "Thereafter his grade and pay shall be adjusted in
accordance with his ARTCC grade and career level and in accordance with
applicable pay rules."
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0120073231
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073231