01A11621_r
05-12-2000
Victoria M. Gonzalez, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Victoria M. Gonzalez v. Department of Transportation
01A11621
June 25, 2002
.
Victoria M. Gonzalez,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A11621
Agency No. 5-98-5149B
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated November 21, 2000, finding that it substantially
complied with the terms of the April 13, 1994 settlement agreement
executed by the parties. The Commission accepts the appeal. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:<1>
(1) The agency agrees to reassign complainant to the position of
Electronics Technician (Instruction), GS-856-12, developmental to the
GS-13 level, in the Principles Training Section, NAV/COM/ENV Branch,
Airway Facilities Division, FAA Academy, serving as an Instructor in
radar principles. Complainant will be eligible for the GS-13 when
qualification and time-in-grade requirements are met.
(2) ...complainant will be scheduled to attend and must successfully
complete the basic instructor training course (BIT) at the FAA Academy....
(3) Costs associated with the....move [from Denver to Oklahoma City]
will be paid by the agency. ...
(4) It is agreed by complainant and the FAA that the facts of this
resolution and all terms contained herein shall be kept confidential.
By letter to the agency dated August 6, 1998, complainant claimed that
the agency breached the settlement agreement. Specifically, complainant
contends that during her tenure at the agency, from June 1994 to her
resignation in March 1998, she never served as an instructor of radar
principles. Furthermore, complainant contends that the existence of
the agreement was improperly disclosed, resulting in negative comments
about how she obtained her position.
In its decision, the agency determined that it substantially complied
with the settlement agreement. Specifically, the agency found that a
developmental GS-12 was created for complainant, and that she received
a GS-13 promotion in February 1995, after she achieved sufficient
time-in-grade and completed the required training. The agency further
indicated that because of a major re-structuring of the training
office in July 1994, complainant could not be assigned to teach radar
principles, but instead was given a broad range of instructor assignments.
In this regard, the agency noted that complainant did not express any
dissatisfaction with this arrangement, and only expressed her displeasure
for the first time in a statement that accompanied her resignation.
The agency additionally determined that the confidentiality provision
had not been breached, finding that the witnesses complainant named
either did not know of the agreement or denied discussing the agreement.
On appeal, complainant submits lengthy statements, with supporting
documentation, refuting the agency's findings and further elaborating
on her arguments. In particular, complainant argues that provision
1 is the cornerstone of the settlement agreement, and it specifically
obligated the agency to provide her with a position as an instructor in
radar principles, and it breached the agreement when it failed to do so.
Complainant further argues that because the existence of the settlement
agreement was disclosed to agency supervisors, they retaliated against
her, ultimately resulting in her resignation. Complainant submits sworn
statements and testimony to this effect from her union representative,
based on purportedly inappropriate statements made to him by a certain
management official in December 1997.<2> The agency submits no response
to the appeal.
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).
Upon review, we find that the agency substantially complied with
the settlement agreement. Review confirms that the agency paid for
complainant's move to Oklahoma City; placed her in a GS-12 developmental
position; provided her with training; and promoted her to a GS-13
instructor position. Regarding provision 1 in particular, the agency
admits that complainant did not receive a radar principles teaching
assignment, but instead received other teaching assignments due to the
re-organization. The agency further indicates that complainant performed
these assignments without complaint for approximately three years,
only indicating her displeasure for the first time when resigning in
March 1998. Complainant does not dispute these findings. Under these
circumstances, we find no breach of provision 1.
Regarding provision 5, we find that complainant claims that the purported
disclosure of the settlement agreement resulted in retaliatory treatment,
and that this treatment resulted in her resignation. We find that this
claim must be treated as a separate complaint of retaliation, and not as
a claim of breach. See 29 C.F.R. � 1614.504(c). In this regard, review
of the record indicates that complainant filed a complaint of retaliatory
harassment/constructive discharge with the agency, identified as agency
number 5-98-5138, and that the agency decision in that case is currently
on appeal before the Commission, docketed as appeal number 01A10391.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
decision finding no breach of the settlement agreement.
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 (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
June 25 ,2002
__________________
Date
1For ease of reference, these provisions have
been re-numbered herein.
2Commission records reflect that complainant previously filed an appeal
regarding this same breach claim, which the Commission dismissed as
being premature. See Gonzalez v. Department of Transportation, EEOC
Appeal No. 01993354 (May 12, 2000).