01a43418
09-15-2004
Rosanne E. Withrow, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Rosanne E. Withrow v. Department of Transportation
01A43418
September 15, 2004
.
Rosanne E. Withrow,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A43418
Agency No. 5-98-5065B
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 20, 2004, finding that it was
in compliance with the terms of a June 28, 2001 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The June 28, 2001 settlement agreement provided, in pertinent part, that:
1.B. Complainant will receive a one-time request for priority
consideration for the next supervisory position that becomes available
and is bid by vacancy announcement at her current employment location,
which is Amarillo, Texas, Airport Traffic Control Tower (ATCT). This time
of the agreement remains effective until the next supervisory position
becomes available and bid by vacancy announcement.<1>
By letter to the agency dated January 29, 2003, complainant alleged
that the agency breached provision 1.B. of the settlement agreement.
Specifically, complainant alleged that she exercised her priority
consideration for a supervisory position in 2001, but that it was later
cancelled due to a memorandum of understanding between the agency and
the National Air Traffic Controllers Association concerning a 10:1 ratio
between controllers and supervisors. Complainant further alleged that
she later applied for a second temporary supervisory position in December
2002, and again exercised her priority consideration option.
In its March 20, 2004 FAD, the agency found no breach of provision 1.B..
The agency determined that the terms of the settlement agreement did
not specify that complainant would be selected for the next supervisory
position at the Amarillo ATCT. The agency further determined that it
agreed to provide complainant with a one-time priority consideration for
the next supervisory position. The agency determined that a review of
the record reveals that complainant submitted two priority considerations
for two supervisory positions at her location.
On appeal, complainant through her attorney, addresses three priority
consideration bids complainant initiated. Complainant argues that she
first applied for a permanent supervisory position and that her supervisor
informed her that �she could not be selected due to nepotism� and that
she could �not be told� of this determination. Complainant stated that
shortly thereafter, this vacancy was cancelled, and that her right
to priority consideration under the instant settlement agreement was
�preserved for use on another day.�
Complainant next argues that she bid on a temporary supervisory position,
but was informed after the bid was closed that priority consideration was
not for a temporary detail. Complainant stated that she was refereed
with other candidates and selected, but that the bid was cancelled and
complainant was never given a reason for the cancellation.
Finally, complainant argues that she bid on a permanent supervisory
position, invoking her right to priority consideration pursuant to
the settlement agreement. Complainant states that an agency official
informed her that he had received a list of eligible candidates and that
complainant was on the list. Complainant argues that through this action,
complainant was not accorded priority consideration. Complainant asserts
that another party was selected.
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 O 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).
In the instant case, the Commission determines that the record in this
case contains insufficient evidence for us to determine whether a breach
of provision 1.B. of the instant settlement agreement has occurred.
The record contains no affidavit from an agency official indicating
that the agency purportedly fulfilled the obligations under the terms of
the settlement agreement. Given this lack of evidence, we are unable
to ascertain whether the agency complied with provision 1.B. of the
settlement agreement. Accordingly, the agency's finding of no breach
of the settlement agreement is VACATED. This matter is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has complied with provision 1.B. of the settlement agreement. The
supplementation of the record shall include any documentation, such as
an affidavit from an agency official, indicating whether complainant
received a one-time request for priority consideration for the next
available supervisory position and bid by vacancy announcement at her
current employment location following the execution of the settlement
agreement. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall issue a new decision concerning whether
it breached provision 1.B. of the June 28, 2001 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2004
__________________
Date
1The settlement agreement also provides that
an Amarillo ATCT Facility Manager would notify complainant verbally when
the next supervisory position becomes available, and would ensure that
she is aware of the announcement; complainant would invoke the priory
consideration in provision 1.B. by informing the Facility Manager in
writing, stating that she intends to submit a bid package for the position
and requesting the priority consideration; and complainant would receive
a letter of enforcement/recommendation supporting her for a permanent
supervisory position from a former Air Traffic Manager at Amarillo ATCT.