01984856
02-14-2000
Cedric Spratt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cedric Spratt v. United States Postal Service
01984856
February 14, 2000
Cedric Spratt, )
Complainant, )
)
v. ) Appeal Nos. 01984856
) Agency Nos. 60-0171-91
William J. Henderson, ) AKA 60-0191-91
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely filed an appeal with this Commission from the
agency's failure to issue a determination on his March 20, 1996 breach of
settlement claims.<1> The Commission accepts the complainant's appeal in
accordance with EEOC Order No. 960, as amended. For the reasons stated
below, the Commission finds that the agency breached provisions 4, 7,
and 11 of an October 10, 1994 settlement agreement and orders specific
performance. The Commission also grants the complainant an award of
reasonable attorney's fees incurred in the processing of this appeal
and in all prior attempts to obtain compliance with provisions 4, 7,
and/or 11 of the agreement.
ISSUE PRESENTED
The issue presented is whether the agency failed to comply with the
terms of an October 10, 1994 settlement agreement between the parties.
BACKGROUND
Prior to a hearing on the complainant's complaint (agency number
60-0171-91, EEOC Hearing No. 210-94-4657X), the parties entered into a
settlement agreement, signed by the agency on September 23, 1994 and by
the complainant on October 10, 1994.
The settlement agreement provided in relevant parts:
. . . The below named complainant agrees to voluntarily withdraw any
outstanding administrative complaint or appeals without prejudice subject
to the ability of the United States Postal Service to place complainant in
a full time employment position as manager of distribution or comparable
position. Complainant reserves the right to reinstate this matter or
request a full hearing before the EEOC should this settlement not lead
to full time employment in the aforementioned position. . . .
It is understood by the undersigned parties to this settlement that by
acceptance of the detail assignment [described in provisions 5 and 6 of
the agreement] the complainant is not guaranteed an assignment to the
position of manager distribution operations on a permanent basis and
may seek leave to reinstate this matter for full hearing before the EEOC.
It is understood and agreed that neither party will seek to set aside
this Settlement Agreement on account of any dispute which arises over
the implementation of the terms of this Agreement. Complainant may only
seek to enforce this Settlement Agreement pursuant to those parts of
the Equal Employment Opportunity Commission regulations which address
the matter of enforcement. . . .
This Settlement Agreement in no way assures or guarantees the complainant
any right to continued placement in a higher level assignment or promotion
but is made in the interest of facilitation towards amicable resolution
of this matter.
The Complainant reserves the right to reinstate this matter before the
EEOC and the Administrative Judge [name] and then and there set this
matter for full hearing.
By letter of March 20, 1996, the complainant wrote the agency's EEO
Office requesting that his complaint be reinstated for hearing pursuant
to provisions 4, 7, and 11 of the settlement agreement. The complainant
alleged that the agency had failed to earnestly apply its resources
to promote him to the position of MDO after signing the agreement.
The complainant also alleged that the agreement was offered under false
pretenses with the agency knowing in advance that the agreement to
promote him to an MDO position on merit alone would not be honored.
There is no indication in the record that the agency responded to the
complainant's March 20, 1996 letter.
On February 7, 1997, the complainant's attorney filed a motion to
reinstate the complainant's complaint with the EEOC's Administrative
Judge in accordance with provision 4 of the agreement. The Administrative
Judge responded that the complainant should comply with the procedure set
forth in 29 C.F.R. �1614.504. The complainant's attorney wrote again
explaining why, because of the terms contained in provision 4 of the
settlement agreement, the complainant did not have to comply with the
procedure set forth in 29 C.F.R. �1614.504 in order to obtain a hearing.
The Administrative Judge responded that the complainant should follow
the procedure set forth in 29 C.F.R. �1614.504, directing his request
to the agency in the first instance.
The complainant's attorney then filed a June 6, 1997 motion with the
agency to reinstate the complainant's complaint for hearing. In support
of the motion, the complainant submitted an affidavit, signed February 6,
1997, wherein he averred that he was not now employed in the position
of manager of distribution or a comparable position.
In response, the agency wrote the EEOC's Chicago District Office on
September 18, 1997, requesting that a hearing be conducted on the
complainant's complaint.
By letter of October 17, 1997, the Administrative Judge wrote the
agency, indicating that under provision 4 of the agreement, the condition
precedent for the complainant's right to reinstate the complaint appeared
to be the agency's non-performance with the agreement. Treating the June
6, 1997 letter as notice to the agency of the alleged noncompliance,
the Administrative Judge remanded the complaint to the agency with
directions to issue a written determination within 30 days of the date of
the remand letter indicating whether the agency had fully complied with
the settlement agreement executed by the parties in or about October 1994.
The Administrative Judge also directed the agency that if it determined
that it had complied with the agreement, to provide the complainant with
the appropriate appeal rights. The Administrative Judge further indicated
that the hearing was canceled and the file returned to the agency.
By letter dated January 8, 1998, the complainant's attorney notified
the agency that, to date, the complainant had not received the agency's
written determination ordered by the Administrative Judge.
On May 8, 1998, the complainant filed the instant appeal.
On August 12, 1998, the agency responded to the complainant's appeal.
The agency submitted evidence that on July 29, 1998, it had received a
scheduling order from an Administrative Judge on agency no. 60-01910-91,
EEOC hearing number 210-98-6381X. The agency represented that a
typographical error had been made regarding the case number and that the
hearing was for the complaint at issue in this appeal. The agency also
pointed out that in the complainant's attorney's March 3, 1997 letter
to the Administrative Judge, the attorney had stated that this was not a
situation of noncompliance, but rather, a case in which the employee has
exercised his option to go forward with a hearing. The agency further
pointed out that the attorney stated in the June 6, 1997 motion that the
motion did not allege a violation of the agreement. The agency requested
that the Commission return the matter to the Administrative Judge for
hearing since the complainant had not withdrawn his request a hearing
and a hearing had been scheduled.
ANALYSIS AND FINDINGS
The question of whether a breach of a settlement agreement has occurred
is one of contract interpretation. The Commission has held that a
settlement agreement between an EEO complainant and a federal agency
is a contract subject to ordinary principles of contract interpretation
and construction. Diyan v. United States Postal Service, EEOC Request
No. 05950032 (February 23, 1996). Generally, when interpreting the
language of settlement agreements, the Commission applies the "plain
meaning" rule, that is, when the settlement agreement language is plain
and unambiguous on its face, its meaning is derived from the agreement's
terms without consideration of evidence from outside of the agreement.
Id. The Commission makes determinations about the parties' intent in
accordance with the plain, ordinary and common sense of the words used
in the agreement. Klein v. Department of Housing and Urban Development,
EEOC Request No. 05940033 (June 30, 1994). However, where the terms of
the agreement are ambiguous or for equitable reasons, the Commission
may go beyond the language of the agreement to ascertain the intent
of the parties. Wong v. United States Postal Service, EEOC Request
No. 05931097 (April 29, 1994).
The complainant alleged in his March 20, 1996 letter that the settlement
agreement was offered under false pretenses with the agency knowing in
advance that the agreement to promote him to a distribution manager
position on merit alone would not be honored. The Commission finds
no provision in the settlement agreement which guaranteed that the
complainant would be promoted to a distribution manager position.
To the contrary, provision 10 plainly stated that the complainant
was not guarantied continued placement in a higher level assignment
or promotion. Provision 7 also expressly provided that the complainant
was not guaranteed an assignment to the position of manager distribution
operations on a permanent basis. In addition, the Commission finds that
both parties anticipated that the complainant might not be promoted to
a distribution manager position following his detail as indicated in
provisions 4 and 11 which expressly provided for such an eventuality.
However, the complainant's March 20, 1996 letter to the agency and
his attorney's motions to the Administrative Judge requested that the
complainant's complaint be reinstated for hearing pursuant to provisions
4, 7, and 11 of the settlement agreement. The Commission finds that these
provisions expressly provided the complainant with the right to have his
complaint reinstated for hearing before an EEOC Administrative Judge
if the agency did not place the complainant in a distribution manager
or comparable position. Provision 8 also provided that the complainant
could seek implementation of the settlement agreement only pursuant to
the EEOC's regulations pertaining to enforcement.
64 Fed. Reg. 37,644, 37,660 (1999) (to be codified an hereinafter
referred to as 29 C.F.R. 1614.504(a) provides that a complainant may
seek enforcement of a settlement agreement by writing to the agency's
EEO Director within 30 calendar days of when the complainant knew or
should have know of the alleged noncompliance.
The settlement agreement did not contain a date by which the agency's
efforts to place the complainant in a distribution manager position or
comparable position should have been completed. Therefore, the Commission
finds that the agency should have been given a reasonable period of
time in which to find a suitable vacant position for the complainant.
The complainant wrote the agency on March 20, 1996, approximately one
and one-half years after the execution of the agreement. The Commission
finds, without any evidence to the contrary in the record, that the
complainant gave the agency a reasonable amount of time in which to
locate a suitable position for him. Therefore, the Commission finds,
pursuant to provisions 4, 7, 8, and 11, that the agency was required
to reinstate the complainant's complaint upon request if the settlement
agreement had not led to full time employment in a distribution manager
position or a comparable position.
The record contains no evidence that the agency has employed the
complainant in a full time distribution manager or comparable position.
In addition, according to the complainant's affidavit, he was not
working in such a position as of February 6, 1997. The Commission also
observes that the agency agreed to the reinstatement of the complainant's
complaint by its September 18, 1997 request to the EEOC that a hearing
on the complainant's complaint be scheduled. Given these facts, the
Commission concludes that the agency had not placed the complainant
in a full time distribution manager position or comparable position
prior to the complainant's March 20, 1996 reinstatement request.
Because the agency did not reinstate the complainant's complaint
upon request pursuant to provisions 4, 7, 8, and 11, of the settlement
agreement, the Commission finds that the agency violated those provisions.
To remedy the noncompliance the Commission orders that the complainant's
complaint be reinstated for a hearing before an EEOC Administrative Judge.
The Commission also orders the agency to award the complainant attorney's
fees pursuant to 29 C.F.R. �1614.501 because he has prevailed on his
breach of settlement agreement claim and obtained specific performance of
provisions 4, 7, and 11 of the agreement. See Brooks v. Social Security
Administration, EEOC Request No. 05970229 (October 8, 1998).
The Commission notes that the agency attempted to comply with provisions
4, 7, 8, and 11, of the settlement agreement in September 1997 when it
requested that a hearing be scheduled. However, there is no evidence
in the record that the agency complied with the Administrative Judge's
subsequent directive that it issue a determination on the complainant's
request for reinstatement pursuant to 29 C.F.R. 1614.504(b). However,
since the Commission has already found that the agency failed to comply
with the terms of the agreement by failing to request a hearing in
the Spring of 1996, a remand ordering the agency to comply with the
Administrative Judge's directive would serve no purpose.
CONCLUSION
For the reasons stated above, the Commission finds that the agency failed
to comply with provisions 4, 7, and 11 of the agreement and, to remedy
the noncompliance, REMANDS the complainant's complaint (agency number
60-0171-91) for a hearing before an EEOC Administrative Judge.
ORDER
The agency is ORDERED to request that the EEOC's Chicago District Office
expedite the scheduling of the complainant's complaint for hearing based
on this Order.
The agency shall submit a copy of the complete record, including the
record on appeal and this decision, with its hearing request. The agency
shall do so within thirty (30) calendar days of the date this decision
becomes final.
The agency shall send copies of the hearing request letter to the
complainant, the complainant's attorney, and the Compliance Officer
referenced below.
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).
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 tofile 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 14, 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 of mailing. I certify that the
decision was mailed to the complainant, the 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.