0120090146
12-01-2011
Barbara Whitworth, et al., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Barbara Whitworth, et al.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120090146
Agency No. 1F-853-0010-06
DECISION
Complainant filed a timely appeal with this Commission from an Agency’s
determination dated November 13, 2008, denying Complainant’s request
for reinstatement of the settled matter due to its noncompliance
with the settlement agreement into which the parties entered. See 29
C.F.R. §1614.504. For the following reasons, we REVERSE the Agency’s
determination.
BACKGROUND
The record indicates that Complainant, as a class complaint agent,
contacted an EEO Counselor concerning the denial of interpreters for
the deaf and hard of hearing employees. Complainant’s November 4,
2008 Appeal Brief at 1. Thereafter, on January 20, 2006, the parties
entered into a settlement agreement resolving the matter which provided
in part that:
All parties agreed to the following:
1. Training will be provided for all supervisors, MDOs, and Deaf & Hearing
Impaired employees concerning the issues of sensitivity, communication,
and planning (within 90 days from 1/20/06) as it relates to deaf & hearing
impaired needs. The Post Office will provide written confirmation that
the training has occurred - to the Arizona Center for Disability Law.
2. Scheduled Interpreter Days: Tour 3 interpreter days will be 5 days
a week (Monday thru Friday) from 4-8 PM starting 1-24-06.
* Addendum: An interpreter will be provided anytime. Supervisor
will provide 48 hours for planning whenever possible. [Complainant and
Agency officials] will create a memo informing supervisors and craft
employees of the terms in item #2. Management and/or employees can
initiate a review of this agreement as needed by contacting [Person A]
who will contact [Complainant] to discuss the request.
By letter dated October 19, 2008, Complainant’s representative
alleged that the Agency breached the settlement agreement by cutting
back the interpreters to two days a week, instead of five days a week
and four hours per day. Complaint File (COM) at 5. On November 13,
2008, the Agency issued its letter of determination indicating that
it did not breach the settlement agreement. Complainant appeals from
this determination.
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).
Complainant, via her representative, claimed that the Agency failed to
comply with the terms of the January 20, 2006 settlement agreement when
it cut back the interpreters to two days a week instead of five days
a week (four hours per day) under item 2 of the settlement agreement.
In this case, the Agency clearly admitted, as Complainant claimed, that
it did reduce the interpreters down to twice a week on August 20, 2008,
but it was done due to budget concerns throughout the Postal Service.
On appeal, the Agency argues that settlement agreements are not
forever. The Agency argues:
When an agency is losing millions of dollars in revenue daily, it is
unreasonable for the agency to pay contractors to be idle. Interpreters
are provided twice a week for four hours a day from 4 – 8
pm. Interpreters are provided any time supervisors will provide 48
hours for planning whenever possible. Management has made every effort
to balance the needs of the employees with the needs of the Postal
Service. Management continues to meet the intent of the agreement and
schedules all communication with the hearing impaired when an interpreter
is scheduled.
Agency’s Brief in Response to Appellant’s Appeal of Final Agency
Decision.
Complainant argues on appeal that since the Agency cut back the
interpreter schedule to twice a week, the needs of deaf and hard of
hearing employees are not being met. Complainant provides an example
of October 22, 2008, when an emergency meeting was held regarding
an anthrax scare and no interpreters were present because it was a
Wednesday and interpreters were only present on Tuesdays and Thursdays.
Complainant further argues that the Agency should not be allowed to breach
the agreement because of the cost of the interpreters. Complainant argues
that if the Agency can continue purchasing new computers and printers,
it can pay for interpreters.
We find that the Agency is not complying with provision 2 of the
agreement. The Commission recognizes that settlement agreements are not
necessarily forever, but in order for one party to unilaterally modify
the agreement or cease complying with the agreement there must be some
change of circumstances. The Agency has not provided any evidence of
any changed circumstances that would make compliance with provision 2
impossible or unnecessary. Although the Agency argues that the needs
of the hearing impaired employees are being met by the new reduced
schedule, Complainant disagrees and the agreement sets forth very specific
terms negotiated by Complainant, as class agent. As for the Agency’s
argument about the expense of the interpreters, we note that provision
2 is what the Agency agreed to and there is no evidence submitted by the
Agency showing that the cost of interpreters has unexpectedly increased
since the agreement was signed. Therefore, we shall order the Agency
to schedule interpreters as set forth in provision 2 of the agreement.
CONCLUSION
The Agency’s determination that it did not breach the settlement
agreement is REVERSED. The matter is REMANDED to the Agency for further
processing in accordance with the ORDER herein.
ORDER
Within 30 days of the date this decision becomes final, the Agency shall
specifically enforce provision 2 (and addendum) of the January 20, 2006
settlement agreement which requires the Agency to have scheduled Tour
3 interpreter days, five days a week (Monday thru Friday) from 4-8 PM.
The Agency shall provide documentation of the specific enforcement of
the agreement to the Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0610)
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 (K0610)
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 (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 (R0610)
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 (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
12/1/11
__________________
Date
2
0120090146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090146