0120141290
07-24-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120141290
Agency No. 2010-23212-FAA-06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision (FAD), dated January 16, 2014, 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 an Administrative Support employee at the Agency's Southern California TRACON facility in San Diego, California.
On August 17, 2010, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2c) The Agency agrees to set Complainant's salary rate (base plus locality), upon appointment, as if he had been selected for an SCT MSS-1 position effective May 26, 2009;
. . .
(12) This agreement constitutes the complete understanding between Complainant and the Agency with respect to the above-described matter. No other promises or agreements shall be binding unless signed by both parties.
By letter to the Agency, dated December 23, 2013, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to set his salary rate using the right benchmarks. Consequently, Complainant maintains that the Agency reduced his base pay by $25,515.00 per year. Complainant offered Pay Bands effective January 1, 2012, in support of his position that those pay bands represent the appropriate rates applicable to him.
The Agency conceded that it initially under-estimated the salary due to Complainant by $5,711.00. The Agency later acknowledged its mathematical error and corrected Complainant's salary. Although the Agreement did not specify a precise salary rate, Complainant maintains that the adjusted payments are still inconsistent with the parties' 2010 settlement agreement.
The Agency Decision
In its January 16, 2014 FAD, the Agency found that it complied with the settlement agreement in a timely fashion. The Agency acknowledged that "a technical error had been made" and "as soon as that was brought to [the Agency's] attention, efforts were immediately made to correct the error." The Agency reasoned that it acted in good faith and concluded that it did not breach the terms of the settlement agreement.
This appeal followed.
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).
In the instant case, Complainant brought his breach claims to the Agency's attention on December 23, 2013, challenging the Agency's calculation of the salary rate to which he was entitled under the terms of the Agreement. The Agency immediately made adjustments as indicated above.
The Commission has held that, pursuant to 29 C.F.R. � 1614.504(b), an agency has 35 days from the receipt of a complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35 day period after the filing of a breach claim, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009). The record shows that the Agency made adjustments before the end of January of 2014.
We find that to the extent that the Agency's initial calculations constituted breach, the Agency's actions of reconsidering the rate that was applicable and making the necessary adjustments immediately after Complainant raised the issue of breach on December 23, 2013, cured any such breach. From the record, it appears that this action was due to an inadvertent error. Since beyond his bare assertions Complainant has not proven to the contrary, we find that the Agency complied with the agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision finding no breach.
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 tends 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), at 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 (S0610)
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 (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
July 24, 2014
__________________
Date
2
01-2014-1290
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141290