Bobbi Silldorff, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 17, 1999
01985933 (E.E.O.C. Sep. 17, 1999)

01985933

09-17-1999

Bobbi Silldorff, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bobbi Silldorff v. United States Postal Service

01985933

September 17, 1999

Bobbi Silldorff, )

Appellant, )

)

v. ) Appeal No. 01985933

) Agency No. 1-I-531-1014-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant timely requested enforcement of the settlement agreement

entered into between the parties. See 29 C.F.R. �1614.402, 504(b);

EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

A formal complaint filed by appellant, and investigated by the agency,

was resolved by a settlement agreement entered into on February 25, 1997.

The agreement stated in relevant part:

1. [Appellant] will submit a written request to be voluntarily reassigned

as a Mailhandler, Level 4. [Appellant will be slotted as a Level 4,

Step L ($34,041.00).

2. That [appellant] successfully pass the Mailhandler Stamina Test as

determined by the Postal Employee Development Center (PEDC) and complete

the requirements for obtaining a Mule Driver's License.

3. Upon meeting the above conditions, [appellant] will be assigned

as FTR Mailhandler, Level 4 at the Milwaukee Mail Processing Annex,

... effective March 15, 1997. [Appellant] will retain this position

until she exercises her bid rights....

On October 8, 1997, a Step 3 grievance/arbitration decision converted

appellant to part-time flexible status. The Step 3 decision stated

that appellant had been inappropriately converted to a full-time mail

handler. On October 21, 1997, the agency notified appellant that she

was converted to a part-time flexible mail handler, effective October

11, 1997. By letter dated November 17, 1997, appellant informed the

agency that her conversion to a part-time flexible mail handler was

a breach of the settlement agreement. Appellant requested that her

complaint be reinstated and that a hearing be scheduled before an EEOC

Administrative Judge (AJ). A hearing was scheduled for June 10, 1998.

On June 2, 1998, the AJ canceled the hearing. According to the AJ,

the matter was improperly before her as it must be processed pursuant

to 29 C.F.R. �1614.504.

By letter dated June 3, 1998, appellant inquired of the Commission as

to the procedure for filing an appeal with the Commission concerning

a breach of a settlement agreement. On July 31, 1998, appellant filed

the instant appeal with the Commission regarding the agency's alleged

noncompliance with the settlement agreement. Appellant states that

the agency acknowledges that it violated the settlement, and that the

agency in fact sent her a letter notifying her of its intent to breach

the agreement. Appellant requests that the settlement be enforced and

that she be awarded attorney's fees.

In response, the agency recounts the history of this matter since

appellant was converted to part-time flexible status. The agency

states that appellant's salary was $35,029 per year ($16.84 per hour)

on October 11, 1997, as a full-time mail handler. According to the

agency, appellant's salary switched to $17.51 per hour when she was

returned to part-time flexible mail handler status on October 11, 1997.

The agency stated that effective April 11, 1998, appellant was converted

back to a full-time mail handler.

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.

If the complainant believes that the agency has failed to comply with

the terms of a settlement agreement or final decision, the complainant

shall notify the EEO Director, in writing, of the alleged noncompliance

within 30 days of when the complainant knew or should have known of the

alleged noncompliance. The complainant may request that the terms of

the agreement be specifically implemented, or, alternatively, that the

complaint be reinstated for further processing from the point processing

ceased.

EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall

resolve the matter and respond to the complainant, in writing. If the

agency has not responded to the complainant, in writing, or if the

complainant is not satisfied with the agency's attempt to resolve the

matter, the complainant may appeal to the Commission for a determination

as to whether the agency has complied with the terms of the settlement

agreement or final decision. The complainant may file such an appeal

35 days after he or she has served the agency with the allegations of

noncompliance, but must file an appeal within 30 days of his or her

receipt of an agency's determination.

Settlement agreements are contracts between appellant and the agency and

it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990). In interpreting settlement agreements, the Commission

has applied the contract principle known as the "plain meaning rule"

which holds that where a writing is unambiguous on its face, its

meaning is determined from the four corners of the instrument without

resort to extrinsic evidence. Smith v. Defense Logistics Agency,

EEOC Appeal No. 01913570 (December 2, 1991). Moreover, other standard

contractual requirements such as the necessity of consideration, apply

in this context. Collins v. United States Postal Service, EEOC Request

No. 05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC

Request No. 05900744 (July 20, 1990); Roberts v. United States Postal

Service, EEOC Appeal No. 01842193 (May 9, 1985).

In the instant matter, appellant alleged that the agency breached the

settlement agreement by converting her from her full-time regular mail

handler status to a part-time flexible mail handler status. We note that

the settlement agreement provided in relevant part that appellant would

retain the position of full-time regular mailhandler, level 4 until she

exercises her bid rights. The Step 3 grievance/arbitration decision

converted appellant to a part-time flexible mailhandler, effective

October 11, 1997. The grievance/arbitration decision determined that

appellant had been inappropriately converted to full-time mailhandler

status because the conversion was not in accordance with seniority order.

This decision prevented the continued fulfillment of the third term of

the settlement. The agency's action in converting appellant to part-time

flexible status constituted a breach of the settlement.

Pursuant to 29 C.F.R. �1614.504(b), an agency has 35 days from the

receipt of an appellant's allegation of breach to resolve the matter.

The Commission interprets that provision to mean that an agency has 35

days within which to cure any breach that has occurred. See Covington

v. United States Postal Service, EEOC Appeal No. 01912311 (September

30, 1991). We note that on April 11, 1998, appellant was converted

back to a full-time mail handler. In light of the salary discrepancy

between full-time status and part-time status and the six month period

of the breach, we can not find that this conversion back to long-term

status cured the breach. Appellant is entitled to relief for the loss

of pay that resulted from the breach.

CONCLUSION

We find that the agency breached the settlement agreement. Accordingly,

this matter is REMANDED for further processing pursuant to the ORDER

below.

ORDER

The agency is ORDERED to take the following actions:

The agency shall pay appellant the amount of pay that she lost during the

period from October 11, 1997 - April 11, 1998, that she was in a part-time

flexible mailhandler status rather than a full-time mailhandler status,

as well as any other benefits she would have received if the agency had

not breached the agreement by changing her status.

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 (H1092)

If appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

Sept. 17, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations