Joseph Perrone, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 11, 2000
01a01118 (E.E.O.C. May. 11, 2000)

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.