0120091373
06-25-2009
Adrianne M. Woods, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Adrianne M. Woods,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091373
Agency No. 4A-110-0077-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 13, 2009, finding that it was
in compliance with the terms of the May 21, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
Complainant works for the agency as a letter carrier or carrier
technician. She contacted an EEO counselor alleging discrimination
based on disability (knees) when she was denied a change in craft and
eight hours of work on some days. The counselor's report suggests that
complainant was alleging a denial of reasonable accommodation.
The settlement agreement provided, in pertinent part, that:
[The Management Official]1 agrees that Andrianne Woods will submit
a request to him for a change of crafts to the custodial craft.
Should the Arverne [Station] position which closes on May 25, 2008
become residual, she will be awarded the position if she fulfills the
requirements. If the position does not become residual, Adrianne will
submit a request for change of craft to the custodial position in any
other Far Rockaway [Main Post Office]. The Management Official further
agrees to aid Adrianne Woods in the E-Reassign process should that become
necessary. The Far Rockaway [Main Post Office] will make every effort
to provide Andrianne 8 hours per day during this process. This would
include delivery to apartments, racking mail & other carrier duties.
This would include allowing Adrianne to work assignments assigned to TEs
[temporary employees] within her restrictions in the Far Rockaway Main
Post Office.
By letter to the agency dated August 21, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically, in a
November 25, 2008, follow up letter, complainant wrote that someone was
"contracted" into the position she was promised after the settlement
agreement. She alleged that had she been moved to the Averne Station as
agreed, she would have gotten eight hours of work daily. She explained
that she was in a light duty situation.
In its January 13, 2009 FAD, the agency concluded summarily that it could
not enforce the settlement agreement, and it was thus null and void.
It advised that the EEO case closed by the settlement agreement was
being reinstated from the point processing ceased. The FAD did not
explain why the settlement agreement could not be enforced.
On appeal, complainant submits a copy of a September 3, 2008, letter
she wrote to an EEO counselor, and documentation on the announcement
for the custodial position Arverne Station which closed on May 25, 2008.
In the letter, complainant wrote that no one bid on the job, and it became
residual. She indicated that as required by the settlement agreement,
she submitted a form to request a change in crafts on May 28, 2008, went
to a fitness for duty examination (FFDE) on June 13, 2008, and a change of
craft examination on July 14, 2008, and that she passed the examinations.
Complainant indicated that she should have been awarded the position
under the settlement agreement, that the Management Official stated over a
month earlier that she had the position, but it was not awarded to her.
In opposition to the appeal, the agency argues that the appeal was
prematurely filed. It states that it accepted complainant's complaint
for investigation on February 23, 2009, that it is under investigation,
and there are no appeal rights at this time. The agency makes no argument
about the settlement agreement.
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).
In the instant case, the agency does not contest complainant's contention
that it breached the settlement agreement. Instead, it found it was
unable to enforce the settlement agreement, and declared it null and void.
The agency, however, gives no reason on why implementing the settlement
agreement is not possible. There is no indication in the record that
complainant did not do what was required of her in the settlement
agreement. Complainant requested that the settlement agreement be
implemented, and the agency has not explained in any way why complainant
is not entitled to what she bargained for. Accordingly, the agency must
implement the settlement agreement. 29 C.F.R. � 1614.504(a).
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency shall retroactively implement the settlement agreement dated
May 21, 2008, that it entered into with complainant. The agency shall
pay the resulting appropriate amount of back pay, with interest, and other
benefits due complainant, if any, pursuant to 29 C.F.R. � 1614.501.
The agency shall complete these actions within 90 calendar days after this
decision becomes final. The agency is further directed to submit a report
of compliance, as provided in the statement entitled "Implementation
of the Commission's Decision." The report shall include supporting
documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 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 (S0408)
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 (Z1008)
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
June 25, 2009
__________________
Date
1 In July 2008, the Management Official was the
Officer-in-Charge/Postmaster of the Far Rockaway Main Post Office.
In February 2009, he was the Manager of Customer Services.
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0120091373
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091373