05a00048
02-18-2000
Bobbi Silldorff, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Areas), Agency.
Bobbi Silldorff v. United States Postal Service
05A00048
February 18, 2000
Bobbi Silldorff, )
Complainant, ) Request No. 05A00048
) Appeal No. 01985933
v. ) Agency No. 1I-531-1014-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Great Lakes/Mid-West Areas), )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On 10/15/99, Bobbi Silldorff (complainant)timely initiated a request
to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Bobbi Silldorff v. United States Postal
Service, EEOC Appeal No. 01985933 (9/17/99).<1> EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)). For the reasons
set forth herein, complainant's request is granted.
BACKGROUND
On August 13, 1996, complainant filed a formal complaint of discrimination
alleging she had been sexually harassed by her supervisor. On February
25, 1997, complainant and the agency entered into a settlement agreement
that resolved the matter. The agreement stated in relevant part:
[Complainant] will submit a written request to be voluntarily reassigned
as a Mailhandler, level 4. [Complainant] will be slotted as a Level 4,
Step L. ($34, 041).
That [complainant] 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.
Upon meeting the about conditions, [complainant] will be assigned as FTR
Mailhandler, Level 4 at the Milwaukee Mail Processing Annex...effective
March 15, 1997. [Complainant] will retain this position until she
exercises her bid rights. Her scheduled work hours are as follows:
Tour Two Begin Tour 6:30 am End Tour 3:00 pm
Scheduled Days Off - Sunday/Monday
By letter dated October 21, 1997, complainant was informed that pursuant
to a Step 3 grievance/arbitration decision, she was being converted
to a part-time flexible Mailhandler, effective October 11, 1997.
By letter dated November 17, 1997, complainant informed the agency that
her conversion to a part-time flexible Mailhandler position constituted
a breach of the settlement agreement. Complainant therefore requested
that the complaint be reinstated, and that her complaint be forwarded
to an EEOC administrative judge for hearing. Although a hearing was
scheduled for June 2, 1998, the AJ canceled the hearing. According to
the AJ, the matter was improperly before her, and it should have been
processed pursuant to 29 C.F.R. � 1614.504.
On July 31, 1998, complainant filed an appeal with the Commission
regarding the agency's noncompliance with the settlement agreement. See
Bobbi Silldorff v. United States Postal Service, EEOC Appeal No. 01985933
(9/17/99). In our prior decision, we found the agency breached the
settlement agreement when it converted complainant to a part time flexible
Mailhandler position, since the agreement provided that complainant would
retain the full time regular, level 4 position until she exercised her
bid rights. The prior decision also noted that the agency informed
the Commission that effective April 11, 1998, she was converted back
to a full-time Mailhandler position. However, in light of the salary
discrepancy between full and part time status, and the 6 month period of
breach, we could not find that the conversion back to full time status
cured the breach.
As such, the prior decision ordered the agency to pay complainant the
amount of money she lost during the period October 11, 1997 and April 11,
1998, which was the period she was in a part time position rather than
a full time position. The prior decision also ordered that the agency
pay complainant any benefits she would have received had the agency not
breached the settlement agreement.
In her request for reconsideration, complainant claims that the agency has
not complied with the settlement agreement. She requests that we revise
the order of the prior decision to include restoring complainant to the
position of a full time regular mail handler, and provide the tour and
off days as specified in the settlement agreement. She also requests
back pay from the time of the breach until the time she is reinstated
into her assignment; $150,000 in compensatory damages; and reimburse
her for all benefits lost. Alternatively, she requests that the case
be reopened and she be granted a hearing. Complainant also alleges
that the agency's failure to comply with the settlement agreement has
caused her great stress, which necessitated her to seek counseling.
She requests all damages and attorney's fees.
In its response to complainant's request, the agency stated that
complainant's request fails to meet the criteria of 29 C.F.R. � 1614.405.
ANALYSIS AND FINDINGS
As we noted in our prior decision, 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).
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. Department 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
v. United States Postal Service, 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).
The prior decision correctly found that the agency failed to comply with
the terms of the settlement agreement when it converted complainant to a
part time Mailhandler position following a grievance decision. Although
the prior decision noted that effective April 11,1998, complainant was
converted to a full time unencumbered Mailhandler position, the agency
had still not cured the breach due to the salary difference between full
and part time. As such, we ordered the agency pay complainant back pay
from the time she was a part time rather than a full time Mailhandler.
Upon review, however, we find the agency is still in beach of the
settlement agreement. Specifically, the record reveals that effective
April 11, 1998, the agency placed complainant back into a full time
Mailhandler position with the "same pay location, schedule, and off
days as the preceding basic workweek." Complainant contends, without
rebuttal from the agency, that she still has not been placed into the
appropriate tour and off days as those specified in the settlement
agreement. As such, we find the agency is still in breach of the
settlement agreement until it places complainant back onto the tour and
off days as specified in the settlement agreement.
If the Commission determines that the agency is not in compliance with
the terms of a settlement agreement, it may order specific performance or
reinstatement of the complaint at the point at which processing ceased. 29
C.F.R. � 1614.504(c). Given that the agency has already implemented a
substantial portion of the settlement agreement, we find that specific
performance is the appropriate remedy in this case.
In her request, complainant requests that we award her $150,000 in
compensatory damages; back pay until she is placed into the assignment
as specified in the settlement agreement; all lost overtime and vacation
time; and reasonable attorney's fees. We note that the Commission's
regulations do not provide for sanctions due to the agency's failure to
comply with the terms of a settlement agreement.
However, as a prevailing party, complainant is entitled to attorney's
fees for work done in connection with her appeal and request for
reconsideration. To be considered a prevailing party, complainant
would have had to have achieved some of the benefits that she sought
in bringing the action. Troie v. United States Postal Service, EEOC
Request No. 05930866 (September 22, 1994). In this case, complainant
won additional back pay that she might not have received if she did not
bring this action for breach of the settlement agreement. One who obtains
the benefits she sought by alleging breach of a settlement agreement is
a prevailing party. Martin, EEOC Request No. 05940745, supra; Eaglin
v. United States Postal Service, EEOC Request No. 05910604 (August 22,
1991). We therefore find that complainant is a prevailing party entitled
to additional attorney's fees incurred in the prosecution of her claim
for back pay in connection with his breach-of-settlement allegation,
through the request-for-reconsideration stage of the process.
Accordingly, we find the agency breached the settlement agreement when it
converted complainant to a part time Mailhandler position. Although the
agency placed complainant into a full time Mailhandler position effective
April 11, 1998, it did not comply with the terms of the settlement
agreement because complainant was not placed on the appropriate tour or
assigned to the appropriate off days. As such, the agency is ordered
to comply with the terms of the settlement agreement and the order below.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to GRANT the complainant's request. The
decision of the Commission in Appeal No. 01985933 (9/17/99) is MODIFIED.
This matter is REMANDED for further processing in accordance with the
ORDER below. There is no further right of administrative appeal on the
decision of the Commission on a Request to Reconsider.
ORDER
The agency is ORDERED to take the following actions:
Within thirty (30) days from the date this decision becomes final, the
agency shall reinstate complainant into a full time regular Mailhandler
position, Level 4, as specified in the settlement agreement of February
25, 1997, with the following tour hours and off days:
Tour Two: Begin Tour 6:30 am End Tour 3:00 pm
Scheduled Days Off: Sunday/Monday
The agency shall pay complainant the amount of pay that she has 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 benefits she would have received if
the agency had not breached the settlement agreement.
The agency shall pay complainant's reasonable attorney's fees as specified
in the paragraph below.
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 (Z1199)
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:
February 18, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.