01995717
08-02-2000
Erma J. Fleming, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Erma J. Fleming v. United States Postal Service
01995717
August 2, 2000
Erma J. Fleming, )
Complainant, )
)
v. ) Appeal No. 01995717
) Agency No. 1H381006197
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 14, 1999, finding that it was in
compliance with the terms of the March 1, 1999 settlement agreement into
which the parties entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency breached complainant's
settlement agreement.
BACKGROUND
Complainant filed a complaint on January 7, 1999,<2> alleging that
her supervisor discriminated against her on the basis of her physical
disability (deafness) when: on March 27, 1997, he issued her a notice
of removal without the presence of a certified interpreter to allow her
to effectively communicate during the disciplinary action.
The parties subsequently agreed to participate in mediation and reached
a settlement agreement on March 1, 1999. The agreement provided, in
pertinent part, that:
(1) The agency will reinstate complainant in a position as a mail
processor. As soon as possible, she will be given 3 options for such
employment at a level 5 to be converted as soon as she accepts one of
the 3 options to a level 4.
As of the date of reinstatement, complainant will be on a 1 year probation
as part of disciplinary procedures for attendance issues.
Complainant will still retain her article 16 rights.
(4) In case of any disciplinary action on complainant, the agency will
provide a certified interpreter.
The agency will maintain a dedicated TTY line for the use of hearing
impaired and deaf employees.
By letter to the agency dated April 29, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency implement the agreed upon terms. Specifically, complainant
alleged that the agency failed to reinstate her as a full-time employee.
In its June 14, 1999, final agency decision, the agency concluded
that the terms of the settlement agreement would not be implemented.
The agency supports its noncompliance with the agreement by arguing that
complainant's removal was upheld by an arbitrator's decision dated May
13, 1998.
ANALYSIS AND FINDINGS
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 Hon O 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).
In the instant case, the settlement agreement dated March 1, 1999, was
validly entered into by both parties. Since the date of complainant's
appeal on July 8, 1999, the agency has failed to implement the agreed
to terms of the settlement. The agency supports its noncompliance with
the agreement by claiming its enforcement of an arbitrator's decision
almost a year prior to the agreement in dispute. The agency, however,
willingly entered a settlement agreement requiring the reinstatement of
the complainant. The Commission, therefore, finds the agency in breach
of the settlement agreement.
In finding a breach under EEOC Regulation 29 C.F.R. � 1614.504(a), the
Commission notes that this agency's employees have dual filing rights
and may pursue allegations of discrimination under both the negotiated
grievance procedure and the EEO process. Although 29 C.F.R. � 1614.301(a)
provides, in relevant part, that an employee filing a complaint or
grievance on the matter of alleged employment discrimination must
elect either the 1614 process or the negotiated grievance procedure,
this agency's employees are exempted from this restriction.
The complainant in the present case properly filed a grievance and
a complaint. Although her claim was adjudicated differently under
two separate procedures, the agency must comply with the settlement
agreement reached under the EEO process. The agency improperly rejected
complainant's claim of breach of settlement agreement, and must implement
the terms of the agreement validly entered through the EEO process.
When the Commission finds the agency in breach of a settlement agreement,
the complainant may seek reinstatement of the underlying complaint or
compliance with the terms of the agreement. See Pelle v. U.S. Postal
Service, EEOC Appeal No. 01921595 (April 27, 1992). Since complainant
in the case at bar requested implementation of the settlement agreement,
we accordingly order specific performance of the agreed upon terms.
CONCLUSION
The Commission finds the agency in breach of its settlement agreement with
complainant. Therefore, we REVERSE the agency's decision, and ORDER the
agency to implement the terms of the settlement agreement in accordance
with the Order below.
ORDER (E0400)
The agency is ORDERED to specifically perform the terms of the
settlement agreement within sixty (60) calendar days of the date that
this decision becomes final. Specifically, the agency is ordered
to reinstate complainant in her former position as a mail processor.
The settlement agreement shall be performed retroactively, and complainant
shall receive back pay and interest for the period from the agency's
initial breach until the present. The agency shall also implement all
other relevant terms, including serving a probationary period, of the
settlement agreement. As referenced below, a copy of the document
which demonstrates that complainant received a retroactive assignment
must be sent to the Compliance Officer.
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 (M0300)
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
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
08-02-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2The agency, by letter dated January 7, 1999, waived the 15 calendar
time limit for filing a formal complaint.