Erma J. Fleming, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01995717 (E.E.O.C. Aug. 2, 2000)

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.