01a01118
05-11-2000
Joseph Perrone, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Joseph Perrone v. Department of Transportation
01A01118
May 11, 2000
.
Joseph Perrone,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A01118
Agency No. 19710000B
DECISION
On November 19, 1999, complainant filed a timely appeal with this
Commission from an agency decision dated October 7, 1999.<1> In the
decision, the agency found that it was in compliance with the terms
of the January 11, 1997 settlement agreement into which the parties
entered. See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.402);
29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
(1)(a) complainant will be re-assigned to the Jacksonville, FL ATCT at
the pay grade commensurate with the full performance level, journeyman
controller. This transfer will be a full and unrestricted, permanent
change of station (PCS) move to the maximum extent permitted by agency
regulation and directives to the Southern Region's Jacksonville, ATCT.
In his July 4, 1998 letter to the agency, complainant alleged that the
agency was in breach of the settlement agreement, and he requested that
the agency specifically implement the agreement's terms. Specifically,
complainant alleged that the agency failed to reimburse him for PCS
expenses that he submitted to the accounting division between January and
March 1998. Complainant argues that he did not expect his PCS expenses
to be limited or curtailed to sixty days based on the agency's regional
policy.
In its October 7, 1999 decision, the agency concluded it had not
breached the settlement agreement because it reimbursed complainant
for all allowable PCS expenses. Specifically, the agency stated that
the agency's nationwide regulations provide a sixty-day limitation on
PCS reimbursements and that complainant knew about this time limit in
December 1997.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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).
The record indicates that the agency's regulations provide that an
employee who transfers in the interest of the Government may receive
payment for actual subsistence expenses for a period of up to sixty
days and that the agency may extend these payments for an additional
sixty days if the employee has compelling reasons. The agreement
does not provide for any special consideration of complainant's PCS
expenses. Absent a specific provision, the agency was not obligated to
do more than that which they are required to do in the normal course of
business. Accordingly, we find that the agency did not breach the subject
agreement when the agency did not extend payments for complainant's PCS
expenses beyond sixty days. The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, [PAGE 4] 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
May 11, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.