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