Leonard A. Mobley, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01986729 (E.E.O.C. Feb. 15, 2000)

01986729

02-15-2000

Leonard A. Mobley, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Leonard A. Mobley v. Department of Transportation

01986729

February 15, 2000

Leonard A. Mobley, )

Complainant, )

)

v. ) Appeal No. 01986729

) Agency No. DOT-6-97-6061B

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

)

DECISION

The complainant timely filed an appeal with this Commission from a

final decision, dated February 23, 1997.<1> The Commission accepts the

complainant's appeal in accordance with EEOC Order No. 960, as amended.

For the reasons stated below, the Commission reverses the decision's

finding that the agency did not breach a term of the settlement agreement

between the parties.

The parties entered into a settlement agreement, signed by agency

officials on June 29, 1993, and by the complainant on July 2, 1993.

Therein, the complainant agreed to withdraw his complaint of racial

discrimination filed on March 23, 1992, in exchange for the agency's

promises that the complainant would be:

(2A) reassigned to Manager, Facility Operations Branch, GM-2152-15,

effective October 17, 1993;

(2B) nominated for the Executive School;

(2C) provided training and/or briefings on Quality-Through-Partnership

(OTP), the NATCA Contract, and the NAATS Contract; and

(2D) considered for promotion and placement selection, free of any

discrimination based upon non-merit factors or reprisal, for positions

that he bids and/or expresses interest in and meets qualification

requirements. Paragraph 2D(1) also specified that the agency would,

as to vacancies covered by the Air Traffic National Selection System,

poll the complainant to determine whether or not he wished to express

interest in the specific vacancy. Paragraph 2D(2) further specified,

as to vacancies within the Western-Pacific Region, that the complainant

would receive specified information about the agency's selection process,

including the rationale and basis for the selection and the areas in

which the complainant needed to improve to increase his chances for

future selection.

In paragraph (2E) the agency promised that the Air Traffic Division

Manager would ensure that the complainant was properly considered and that

the selection documentation was complete, accurate, and fully supported

by information of record. Paragraph 6 of the agreement concluded in

relevant part:

Pursuant to 29 C.F.R. �1614.504, the parties further agree that if the

agency does not carry out, or rescinds, any action specified by the terms

of this agreement for any reason not attributable to the acts or conduct

of the Complainant the Agency shall upon Complainant's written request,

reinstate the complaint for further processing from the point processing

ceased under this agreement or implement the terms of the agreement.

By letter of March 21, 1997, the complainant notified the agency's

Departmental Office of Civil Rights that the agency had not carried

out any of the terms of the agreement other than his reassignment.

The complainant informed the Civil Rights Office that now the agency

was rescinding his reassignment as well. The complainant requested

reinstatement of his March 23, 1992 complaint. The complainant also

alleged that the reassignment was the culmination of numerous ongoing

examples of unequal treatment and reprisals based on his race and color

and EEO activity, including his advocating for diversity at all levels

of the workforce. The complainant pursued the latter allegation in an

EEO complaint, filed September 8, 1997, that is the subject of a pending

request for reconsideration, Mobley v. Department of Transportation,

EEOC Request No. 05990229.

After waiting almost one year, on February 23, 1998, the agency responded

to the complainant's allegations of noncompliance. The decision

acknowledged that the complainant's reassignment from his position of

Manager, Facility Operations Branch, to Manager, Airspace Branch, was not

due to the complainant's acts or conduct. However, the decision held that

the complainant's reassignment did not violate the settlement agreement

because there was no provision in the agreement which provided that the

complainant would be able to keep his position of Manager, Facility

Operations Branch, for any given period of time. Thus, the decision

concluded, the agency had not breached paragraph 2A of the agreement.

The decision also found that the complainant failed to timely allege

noncompliance with paragraphs 2B, 2C, and 2D of the agreement because

the complainant indicated in a May 2, 1997 letter that he viewed the

agency as not complying with those provisions as early as July 1994

(paragraph 2C) and mid-1995 (paragraph 2B and 2D).

On appeal, the complainant informs the Commission that the agency

dismissed his current allegations of racial discrimination and

retaliation because they were pending before the agency as settlement

breach allegations, but then failed to address the discrimination

and retaliation allegations in its settlement agreement decision.

The complainant also contends that the agency's settlement agreement

decision failed to address the paragraph 6 provision set forth above

which the complainant believes governs this matter.

In response to the complainant's appeal, the agency contends that the

complainant's breach allegation are untimely because they were not raised

with an EEO counselor within 45 days of the events which the complainant

alleges constitute breach.

ANALYSIS AND FINDINGS

The question of whether a breach of a settlement agreement has occurred

is one of contract interpretation. The Commission has held that a

settlement agreement between an EEO complainant and a federal agency

is a contract subject to ordinary principles of contract interpretation

and construction. Diyan v. United States Postal Service, EEOC Request

No. 05950032 (February 23, 1996). Generally, when interpreting the

language of settlement agreements, the Commission applies the "plain

meaning" rule, that is, when the settlement agreement language is plain

and unambiguous on its face, its meaning is derived from the agreement's

terms without consideration of evidence from outside of the agreement.

Id. The Commission makes determinations about the parties' intent in

accordance with the plain, ordinary and common sense of the words used

in the agreement. Klein v. Department of Housing and Urban Development,

EEOC Request No. 05940033 (June 30, 1994).

The Commission finds that paragraph 2A required the agency to reassign

the complainant to the position of Manager, Facility Operations Branch,

GM-2152-15, effective October 17, 1993. It is undisputed that the

agency initially reassigned the complainant as promised. The Commission

repeatedly has held that where an individual bargains for a position

without any specific terms as to the length of service, it would be

improper to interpret the reasonable intentions of the parties to

include employment in that exact position ad infinitum. See, e.g.,

Elliott v. United States Postal Service, EEOC Request No. 05950615

(December 13, 1995).

However, the Commission finds that the parties expressly agreed in

paragraph 6 of the settlement agreement that if the agency "rescinds

any action specified by the terms of this agreement for any reason not

attributable to the acts or conduct of the Complainant the Agency shall

upon Complainant's written request, reinstate the complaint for further

processing from the point processing ceased . . . ." The Commission

also finds, as the agency acknowledged in its February 23, 1998

decision, that the complainant was reassigned from his position of

Manager, Facility Operations Branch, for a reason other than his acts

or conduct. The Commission further finds that the complainant timely

requested reinstatement of his complaint within 30 days of the date

the agency effectively rescinded the action required by paragraph 2A

of the agreement, that is, on or about March 19, 1997. Accordingly,

the Commission finds that the agency was required by paragraph 6 of the

agreement to reinstate the complainant's March 23, 1992 complaint for

further processing from the point processing ceased. Because the agency

did not reinstate the complainant's complaint upon request, the Commission

finds that the agency violated paragraph 6 of the settlement agreement.

In determining the proper remedy of the agency's breach, the Commission

observes that the record does not contain any evidence that the agency

substantially complied with the remaining terms of the settlement

agreement, notwithstanding its breach of paragraph 6. In particular,

the record does not demonstrate that the complainant received the

executive training, the briefings and advice for increasing his chances

for promotion, and the consideration for unannounced vacancies for

which he had bargained in paragraphs 2B, 2C, 2D and 2E. Accordingly,

to remedy the breach the Commission orders the agency, pursuant to

29 C.F.R. �1614.504(c), to reinstate the complainant's March 23, 1992

complaint from the point that processing ceased.

Because the Commission orders reinstatement of the complainant's complaint

due to the agency's breach of paragraph 6 of the settlement agreement,

the Commission does not need to address the complainant's remaining

breach allegations. In addition, the Commission does not need to remand

the matter to the agency for investigation as to whether the agency

additionally violated the agreement by reassigning the complainant in

bad faith on or about March 19, 1997. See Elliott v. United States

Postal Service, EEOC Request No. 05950615 (December 13, 1995).

The agency contends on appeal that the complainant's breach allegations

are untimely because they were not raised with an EEO counselor within

45 days of the events which the complainant alleges constitute breach.

However, there is no requirement that an individual contact an EEO

counselor regarding breach of settlement claims. See 64 Fed. Reg. 37,644,

37,660 (1999) (to be codified at 29 C.F.R. �1614.504(a)). Moreover,

as indicated above, the Commission finds that the complainant timely

requested reinstatement of his complaint within 30 days of the date the

agency effectively rescinded the action required by paragraph 2A of the

agreement, that is, on or about March 19, 1997.

CONCLUSION

For the reasons stated above, the Commission REVERSES the agency's

February 23, 1997 decision and ORDERS the agency on REMAND to reinstate

the complainant's March 23, 1992 complaint for further processing from

the point that processing ceased.

ORDER

The agency is ORDERED to reinstate the complainant's March 23, 1992

complaint for further processing from the point that processing ceased.

The agency is ORDERED to inform the complainant and the Compliance

Officer referenced below in writing that it has complied with paragraph

1 of this Order.

The agency shall complete the actions ordered in paragraphs 1 and 2 of

this Order within thirty (30) calendar days of the date this decision

becomes final.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

February 15, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that the

decision was mailed to the complainant, the complainant's representative

(if applicable), and the agency on:

DATE Equal Employment Assistant

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.