Bobbi Silldorff, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Areas), Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
05a00048 (E.E.O.C. Feb. 18, 2000)

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.