Jan E. McGuire, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 17, 2000
01a01941 (E.E.O.C. Aug. 17, 2000)

01a01941

08-17-2000

Jan E. McGuire, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jan E. McGuire v. United States Postal Service

01A01941

August 17, 2000

.

Jan E. McGuire,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A01941

Agency No. 4C-164-0015-99

DECISION

Complainant filed the present appeal with the Commission alleging that

the agency had breached the settlement agreement entered into by the

parties.<1>

Complainant and the agency entered into a settlement agreement on December

10, 1999. The settlement agreement provided, in pertinent part, that:

[The agency] agrees to move [complainant] from Level 11 to Level

13 on the pay schedule effective pay period number 2 of the year

2000. [Complainant] will receive an 8% pay increase. [The agency] agrees

to change [complainant's] F.Y. 1998 merit to �Far Exceeds� and agrees

to pay [complainant] the lump sum of $381.00 on or before pay period

number 2 of the year 2000.

On December 13, 1999, complainant was informed by the Manager of Post

Office Operations (MO1) that the settlement could not stand.

By e-mail to the agency dated December 16, 1999, complainant alleged that

the agency was in breach of the December 10, 1999 settlement agreement and

requested that the agency fully implement the terms of the agreement.

When the agency did not respond to complainant's letter of noncompliance,

complainant filed an appeal with the Commission.

The record contains a letter from the EEO Counselor which states that

MO1 did not have the authority to offer the settlement into which the

parties entered.

Volume 64 Fed. Reg. 37,644, 37,660 (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 Hyon 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).

The Commission has previously held that a signed settlement agreement,

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

representative of the agency. Jacobsohn v. Department of Health and

Human Services, EEOC Request No. 05930689 (June 2, 1994) (citing Soliz

v. United States Postal Service, EEOC Request No. 05901010 (October

25, 1990)). However, in order to void the agreement, the agency must

present evidence indicating that the signatory to the agreement lacked

the authority to agree to its terms. See id.

Here, the agency has presented no evidence indicating that MO1 was not

authorized to bind the agency to the terms of the settlement agreement.

The agency has submitted no internal regulations or procedures showing

that MO1 was not authorized to enter into settlement agreements

with complainants, or was authorized to agree only to certain terms.

Furthermore, this is not a case where MO1 has agreed to a settlement

provision that exceeds the agency's legal authority. See, e.g., Thompson

v. Department of Health and Human Services, EEOC Request No. 05910892

(March 11, 1992) (affirming the removal of a settlement agreement

provision awarding complainant attorney's fees for the administrative

processing of his complaints under the Age Discrimination in Employment

Act (ADEA) because such fees are not contemplated under the statute).

Because the agency failed to provide evidence showing that MO1 lacked

the authority to agree to this provision on his own, the Commission

finds that the agency has not met its burden of demonstrating that this

provision is invalid. See Jacobsohn, supra.

Furthermore, we note that complainant submitted evidence demonstrating

that MO1 had apparent authority to enter into a settlement agreement.

The Commission has defined apparent authority, citing the Second

Restatement of the Law of Agency, as "'the power to affect the legal

relations of another person [or entity] by transactions with third

persons, professedly as agent for the other, arising from and in

accordance with the other's manifestations to such third person.'�

Mitchell v. United States Postal Service, EEOC Appeal No. 01934907

(February 18, 1994). In the present case, complainant entered into

mediation through a formal agency program named REDRESS. Present at the

mediation conference was complainant, complainant's representative, MO1,

and the mediator. The settlement agreement was signed by all parties

on December 10, 1999. Complainant claimed that MO1 acted as if he had

the power, and permission, to bind the agency to all provisions of the

settlement agreement. Thus, we find that the evidence demonstrates

that MO1 purported to have the authority to enter into the settlement

agreement. From the record, it appears that complainant entered into

the agreement relying on MO1's apparent authority to agree to its terms.

See id. Moreover, the Commission finds this reliance quite reasonable,

as MO1 was in attendance at the REDRESS mediation as the management

official regarding complainant's EEO complaint. The Commission therefore

finds that MO1 had the apparent authority to enter into this agreement.

The Commission therefore finds that the settlement agreement in this

case is valid and binding on both parties. There is no indication

that the agency complied with the agreement. Furthermore, the agency

effectively stated that it will not implement the terms of the agreement.

Where, as here, the Commission has determined that an agency is not in

compliance with a valid settlement agreement and the noncompliance is

not attributable to acts or conduct of the complainant, we may order

compliance with the agreement or we may order that the complaint be

reinstated for further processing from the point processing ceased. 29

C.F.R. � 1614.504(c). Therefore, we find that the agency has breached

the settlement agreement and we shall order the agency to implement the

settlement agreement.

The agency's decision was improper and is REVERSED and the matter is

REMANDED to the agency for further processing in accordance with the

Order below.

ORDER

Within thirty (30) calendar days of the date this decision becomes final

the agency shall specifically implement the terms of the December 10,

1999 settlement agreement retroactively. The agency shall supplement

the record with documentation showing that the agency has implemented

the terms of the settlement agreement. Within thirty (30) days of the

date this decision becomes final the agency shall issue a decision

to complainant informing her that the agency has complied with the

settlement agreement. A copy of the decision must be sent to the

Compliance Officer as referenced herein.

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

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); 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 17, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.