Carla Y. Williams, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 9, 1999
01991504 (E.E.O.C. Nov. 9, 1999)

01991504

11-09-1999

Carla Y. Williams, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Carla Y. Williams, )

Complainant, )

)

) Appeal No. 01991504

) Agency No. 4-J-600-0221-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On September 1, 1998, the complainant filed an appeal with this Commission

after not receiving a response from the agency to her letter requesting

that the agency reconsider its August 14, 1998 letter stating that the

August 4, 1998 settlement agreement (SA) was null and void.<1> The

agency issued a Final Decision (FAD) dated October 13, 1998, finding

that it would not enforce the August 4, 1998 settlement agreement that

the complainant and the Manager of Transportation Network for the Carol

Stream P&DC had signed. See 64 Fed. Reg. 37,644, 37,659-660 (1999) (to

be codified at 29 C.F.R. �� 1614.402, 1614.504(b)); EEOC Order No. 960,

as amended.

The SA provided that:

I, [the complainant], do hereby voluntarily withdraw my EEO Complaint

based on the stipulation(s) that: I shall be permanently assigned to

the position of General Clerk - PS-05, in Plant Support 0850 start ABD

1700 EBD - N/S [days] if Saturday and Sunday, effective Saturday August

15, 1998[.] My present assignment of BBM Clerk shall be posted for bid,

consistent with contractual provisions. This shall constitute a �dual

assignment� for vacancy no. 7855826 and the CBT 712 is hereby waived my

having demonstrated this skill requirement during my 6 year[s], temporary

assignment to the subject position. The next vacancy which occurs for the

position of General Clerk In-Plant Support shall not be posted unless the

employer determines that it is needed. There shall no back-pay as part

of thissettlement, nor attorney or representation fees, and no other terms

or conditions of this agreement which are not expressly contained herein.

By memorandum dated August 14, 1998, the Manager of Human Resources

informed both the complainant and the responding management official

who signed the SA that the agreement was null and void because it was

improperly done. Specifically, the memorandum stated that the SA would

not be implemented because the management official who signed it did not

have the authority to either waive the CBT 712 typing exam or prepare and

consummate an EEO SA, the EEO Counselor/Investigator had the authority

to present and consummate an EEO SA but he was on vacation that week,

the SA was prepared on the wrong form and proper coordination with other

managers including personnel was bypassed.

By letter to the agency dated August 22, 1998, the complainant's

representative requested that the agency reconsider its decision not to

honor the SA because the responding management official did have the

authority to enter into an EEO SA and could waive the CBT 712 typing exam.

The complainant's representative also stated that nothing in Title

VII or EEOC's management directives (MD-110) and procedures prevented a

settlement of an EEO complaint without the involvement or assistance of an

agency Counselor/Investigator. Further, the complainant's representative

asserted that the SA was valid and binding and requested a response from

the agency by August 26, 1998.

Upon not receiving a response from the agency the complainant's

representative filed the instant appeal on September 1, 1998, and

requested that the SA be enforced. Specifically, the complainant's

representative asserted that the agency official who signed the SA

did have authority to waive the CBT 712 typing exam pursuant to the

collective bargaining agreement (CBA). Additionally, the complainant's

representative stated that the agency had no clear �designation of

authority for signing of settlement agreements.� The complainant's

representative asserted that the agency's other listed reasons for

voiding the SA were pretextual and border on �bad faith.� Moreover,

the complainant's representative asserted that because the complainant

had performed in a General Clerk assignment for the last six years

and continues to perform in that assignment, that the agency had thus

ratified the SA.

On October 13, 1998, the agency issued its FAD, reiterating that the

SA was not enforceable because it violated the agency's rules and

regulations. Specifically, the agency stated that the CBT 712 typing

exam was a national qualification standard which could not be waived

at the local level and that the management official who signed the SA

did not have the authority to create a position in another department

as stated in the SA. In response to the complainant's appeal, the

agency supported its decision with several pages from EL-303, TL 3,

�Qualification Standards - Bargaining Unit Positions� (EL-303) and a

copy of a position description showing that the CBT 712 typing exam

cannot be substituted with a certificate of proficiency. Additionally,

the agency submitted a letter written to the Manager of Human Resources,

dated September 9, 1998, signed by a Senior Personnel Services Specialist,

which stated that the Manager of Transportation Networks (the official

who signed the SA) could not create a position for the In-Plant Support

department.

64 Fed. Reg. 37,644, 37,660 (1999) (to be codified at 29 C.F.R. �

1614.504(a) provides that any SA knowingly and voluntarily agreed to

by the parties, reached at any stage of the complaint process, shall

be binding on both parties. A SA 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 previously held that a signed SA,

in order to be valid and enforceable, must be executed by an authorized

representative of the agency. See Soliz v. U.S. Postal Service, EEOC

Request No. 05901010 (October 25, 1990). Moreover, the Commission has

held that the agency must present evidence that the signatory to the

agreement lacked the authority to agree to its terms, and even if it

does show that the signatory lacked the authority to bind the agency

to the SA's terms, subsequent conduct by the agency may ratify the SA.

See Jacobsohn v. Department of Health and Human Services EEOC Request

No. 05930689 (June 2, 1994).

In the instant case, the agency stated generally that the SA violates

agency rules and regulations. Specifically, the agency stated that the

CBT 712 typing exam could not be waived at the local level because it was

a national qualification standard. To support this contention the agency

submitted several pages of the EL-303. This document shows that General

Clerks and Schemes Clerks are required to demonstrate the ability to type

at a rate of 45 words per minute in a five minute test, demonstrated

by successful completion of the Postal Service Test 712. The document

further states that �Certificates of proficiency� are not acceptable.

The complainant asserts that the typing exam can be waived pursuant

to the CBA, but she failed to provide supporting evidence on appeal.

The agency does not address this assertion.

Additionally, the agency contended that the SA could not be enforced

because the Manager of Transportation Networks (MTN) (the agency

signatory) had no authority to establish a position in the In-Plant

Support department. The agency's support for its position in the record,

appears to be a letter written by a Senior Personnel Staffing Specialist

to the Manager of Human Resources.

Accordingly, under these circumstances and with the evidence presented in

this appeal, we find that the August 4, 1998 SA is valid and enforceable.

ORDER

The agency is ORDERED to reinstate the complainant's complaint at the

point where processing ceased comply with the terms of the settlement

agreement entered into between the complainant and the agency on August

4, 1998. The agency shall so comply within thirty (30) calendar days

of the date this decision becomes final. The agency is further directed

to submit a compliance report, with proof of all relevant actions taken,

to the Compliance Officer, as referenced below.

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).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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

(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:

April 3, 000

____________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________

1 On 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.