0120142280
10-14-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120142280
Agency No. 2011-24170-FAA-06
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated May 5, 2014, finding that it was in compliance with the terms of a November 19, 2012 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On November 19, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued through the EEO complaint process. The November 19, 2012 settlement agreement provided, in pertinent part, that:
..........
2.d. [Air Traffic Manager of Denver ARTCC] will provide a positive endorsement as needed or requested to those facilities to which the complainant submits an Employee Requested Reassignment (ERR). [Air Traffic Manager of Denver ARTCC] will provide a prompt release to any facility that accepts the complainant for an Employee Requested Reassignment (ERR).1
By letter to the Agency dated March 19, 2014, Complainant alleged breach. Specifically, Complainant alleged that the Air Traffic Manager of the Denver ARTCC provided a negative reference to the Air Traffic Manager of Oakland ARTCC and "disclosed information related to prior EEO complaints and settlements. In discussing my disability and the prior complaints, the Air Traffic Manager also released Privacy Act Information. As a result I was not considered for a bid on Job Number AWP-ATO-13-14AKNN-31842 to the Oakland ARTCC that closed on August 28, 2013 that would have included permanent change of station benefits, a promotion, and a pay increase."
In its May 5, 2014 final decision, the Agency found no breach of provision 2.d, and noted the Agency's correspondence with two ARTCC's, in Boston as well as in Oakland. The Agency found that an Agency representative stated that the Air Traffic Manager of the Denver ARTCC provided a positive endorsement to the Air Traffic Manager of the Boston ARTCC sometime between Complainant's submission of his transfer request in May 2013 and September 2013.
Further, the Agency representative noted that during the relevant period, the Boston Air Route Traffic Control Center (ZBW) decided to pick Complainant through the ERR process and on September 4, 2013, employees from the Eastern service center who were facilitating the transfer asked for a copy of the instant agreement as justification for picking up Complainant through the ERR process. Specifically, the Agency representative stated that the justification for a copy of the instant agreement was necessary for collective bargaining purposes. On November 25, 2013, the Office of Human Resources in the Eastern Region extended a tentative job offer to Complainant. However, Complainant declined the offer.
Moreover, the Agency representative also stated that sometime between August 2013 and January 2014, the Air Traffic Manager of Denver ARTCC provided a positive endorsement of Complainant to the Air Traffic Manager of Oakland ARTCC.
Complainant, on appeal, stated even though he submitted his ERR packet to the Oakland ARTCC he was not selected. Complainant asserts that his non-selection in Oakland occurred even though the Oakland ARTCC was "... severely understaffed and hiring many ATC Specialist trainees with no experience that will require years to certify. There is a clear discrepancy between Oakland ARTCC hiring practices and my non-selection. I allege that it is due to a negative reference and disclosure of privacy act information by [Air Traffic Manager of Denver ARTCC]. [Air Traffic Manager of Denver ARTCC] and [Air Traffic Manager of Oakland ARTCC] statements included in the agency's response are incomplete. Further, I allege that they are inaccurate."
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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, we find that The Agency complied with the terms of the settlement agreement. Provision 2.d. of the agreement provides for an affirmative Agency obligation to assure that the Air Traffic Manager of Denver ARTCC would provide a positive endorsement as needed or requested to those facilities to which Complainant submits an ERR, and provide a prompt release to any facility that accepts Complainant for an ERR.
The record contains a copy of the Air Traffic Manager of Denver ARTCC's declaration dated April 18, 2014. Therein, the Air Traffic Manager stated that he recalled providing the Air Traffic Manager of Oakland ARTCC "with a positive endorsement of [Complainant]. I do not recall the date...I did not convey any privacy protected information about [Complainant] to [Air Traffic Manager of Oakland ARTCC] or anyone else."
The record also contains a copy of the Air Traffic Manager of Oakland ARTCC. Therein, the Air Traffic Manager stated that on February 6, 2014, she recalled talking to the Air Traffic Manager of Denver ARTCC and that he "did not provide a negative endorsement of [Complainant]...[Air Traffic Manager of Denver ARTCC] did not convey any privacy protected information about [Complainant] to me."
Complainant alleged that that the intent of the parties was that the Agency would easily facilitate his transfer to Oakland ARTCC because they are severely understaffed. However, provision 2.d. does not specify that Complainant would be guaranteed a transfer to the Oakland ARTCC, regardless of whether he was deemed qualified for the positions. If Complainant had wanted to be transferred in an ATC Specialist position at Oakland ARTCC, he should have included it as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
Accordingly, the Agency's determination that it was not in breach of provision 2.d. of the November 19, 2012 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 14, 2014
__________________
Date
1 The settlement agreement also provides for the Agency to restore 80 hours of sick leave and 40 hours of annual leave to Complainant; amend Complainant's sick and annual leave during the July 2011 - September 2011 time period to paid administrative leave, and restore the subject sick and annual leave to Complainant's bank; provide all managers at the Denver Air Traffic Control Center (ARTCC) training on sick leave administrative, including Family Medical Leave Act; facilitate Complainant's request to transfer from Denver ARTCC to another facility; and assure that Complainant's December 2, 2011 suspension would be ceased to be fresh two-years from its effective date and when Complainant reports to a new facility as a result of his voluntary transfer, the subject suspension would be considered fresh for purposes of citing as a prior record. These provisions are not at issue in the instant case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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