Cedric Spratt, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 14, 2000
01984856 (E.E.O.C. Feb. 14, 2000)

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.