01996795
12-15-2000
Rodney B. Dunnington, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Rodney B. Dunnington v. Department of Transportation
01996795
December 15, 2000
.
Rodney B. Dunnington,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01996795
Agency No. 5-99-5044B
DECISION
The Commission finds that the agency's February 26, 1999 final decision
finding no breach of a settlement agreement is proper pursuant to the
regulation set forth at EEOC Regulation 29 C.F.R. � 1614.504(a).<1>
On January 6, 1999, the agency and complainant entered into a settlement
agreement. The settlement agreement contained, in pertinent part,
the following provision:
2. The Agency agrees to: Move [a named co-worker] on the schedule to days
off that will not correspond to [complainant's] days off. [The co-worker
will also be verbally reprimanded and made aware that [offensive]
comments are not tolerable. These items will be accomplished prior to
February 1, 1999.<2>
By letter dated February 9, 1999, complainant claimed settlement breach.
Specifically, complainant stated that the co-worker's work schedule was
not changed in accordance with provision 2 of the settlement agreement.
In its final decision, the agency found no settlement breach. The agency
determined that the co-worker's work schedule was changed, although the
change was not made by February 1, 1999. The agency further determined
that the delay was attributable to mis-communication; that an agency
supervisor stated that the settlement agreement copy he had signed
had not been signed by complainant, who signed a separate copy of the
agreement; and that he waited for confirmation from the agency's Civil
Rights department to assure the validity of the agreement.<3> The
agency determined that after confirmation was received on February 8,
1999, steps were taken to effect the schedule change, which occurred
on February 14, 1999. The agency acknowledged that there may have
been several days in which the co-worker's schedule corresponded with
complainant's schedule after the co-worker's schedule change took effect
on February 14, 1999. However, the agency stated that the supervisor
indicated that complainant and the co-worker were not working �directly
together;� that it was sometimes impossible to keep employees separated
because it was a small unit; and that soon after the schedule changes,
complainant was transferred to Flight Service. The agency noted that
the reprimand addressed in provision 2 was issued to the co-worker. In
summary, the agency determined that there was no evidence to show that the
agency intentionally delayed the processing of the terms of the settlement
agreement; and that complainant suffered from no undue harm as a result
of the fourteen-day delay (February 1, 1999 to February 14, 1999).
In a letter dated July 8, 1999, an agency Manager addressed the schedule
change delays for the co-worker, and noted that the co-worker has since
been permanently assigned to a position in another location. Regarding
the delay in implementation of the agreement, the Manager concluded the
letter by stating that the delay was due to a communication breakdown
between the agency's Office of Civil Rights and the Air Traffic Control
Division; and that to prevent future incidents of this nature, the Air
Traffic Division briefed all field managers on the importance of advance
coordination of any settlement agreement that binds the agency.
EEOC Regulations provide that any settlement agreement knowingly and
voluntarily agreed to by the parties shall be binding on both parties.
If the complainant believes that the agency has failed to comply with the
terms of a settlement agreement, then the complainant shall notify the
EEO Director of the alleged noncompliance "within 30 days of when the
complainant knew or should have known of the alleged noncompliance."
29 C.F.R. �1614.504(a). The complainant may request that the terms
of the settlement agreement be specifically implemented or request
that the complaint be reinstated for further processing from the point
processing ceased. Id.
Settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). In reviewing settlement agreements to determine
if there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. USPS, EEOC Request No. 05931097 (Apr. 29, 1994) (citing Hyon
v. USPS, EEOC Request No. 05910787 (Dec. 2, 1991)). This rule states that
if the writing appears to be plain and unambiguous on its face, then its
meaning must be determined from the four corners of the instrument without
any resort to extrinsic evidence of any nature. Id. (citing Montgomery
Elevator v. Building Engineering Service, 730 F.2d 377 (5th Cir. 1984)).
After review of the terms of the settlement agreement and the record,
we find that the agency has substantially complied with the terms of the
settlement agreement. The Commission determines that to the extent that
the agency breached the settlement agreement, the breach has been cured.
Accordingly, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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, 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
December 15, 2000
__________________
Date
1 On 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.
2 The settlement agreement inadvertently refers to �February 1, 1998"
instead of �February 1, 1999.�
3 The Commission notes that the copy of the settlement agreement in the
record contains solely complainant's signature.