Rosanne E. Withrow, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionSep 15, 2004
01a43418 (E.E.O.C. Sep. 15, 2004)

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.