Laurie Siederman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01986939 (E.E.O.C. Apr. 19, 2000)

01986939

04-19-2000

Laurie Siederman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Laurie Siederman v. United States Postal Service

01986939

April 19, 2000

Laurie Siederman, )

Complainant, )

)

v. ) Appeal No. 01986939

) Agency Nos. 63-0072-91, 6I-0006-94 & 6I-0044-94

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

Complainant timely appealed the agency's final decision not to reinstate

her complaints of unlawful employment discrimination that the parties

had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),

� 1614.405, and � 1614.504).

The record indicates that complainant filed three formal complaints

dated July 11, 1991, November 5, 1993, and January 6, 1994, concerning a

disciplinary action, her workers' compensation benefits, a low performance

appraisal rating, and working conditions. Thereafter, on June 14,

1996, the parties resolved the complaints by entering into a settlement

agreement which provided, in part, that:

Complainant's promotion to EAS-21 will be effective PP 20/89 and her

merit evaluation shall be processed as "good." Complainant shall be

compensated at the applicable EAS-21 rate of pay with interest from PP

20/89 through PP 25/89 and her personnel records shall be corrected to

show that complainant was promoted to EAS-21 effective PP 20/89.

Complainant's promotion to EAS-23 will be effective PP 20/91 and

complainant shall be compensated at the applicable EAS-23 rate of pay with

interest from PP 20/91 through PP 25/91; and her personnel records shall

be corrected to show that complainant was promoted to EAS-23 effective

PP 20/91.

The agency will review complainant's pay history from PP 20/89 through

PP 25/91. If complainant received any bonuses and/or merit and/or

step increases during this period which would be changed as a result

of changing complainant's promotion to EAS-21 to PP 20/89, her merit

evaluation as "good," and her promotion to EAS-23 to PP 20/91, the

bonuses and/or merit increases will be adjusted and complainant will be

compensated for such adjustments.

If complainant was to be paid a Law Enforcement Premium effective 1991,

the agency will ensure that she is paid this premium.

The agency agrees neither to obstruct nor to negate complainant's

application for disability retirement.

The agency agrees to cooperate with complainant and provide her with all

appropriate assistance in the processing of complainant's application for

disability retirement. The agency further agrees to send a letter to the

Office of Personnel Management (OPM) with the complainant's disability

retirement application requesting expeditious handling by the OPM.

The agency agrees to pay attorney fees to complainant's counsel in the

amount of $750.00.

By letters dated July 15, 1997, and May 31, 1998, complainant, through

her attorney, alleged that the agency breached the settlement agreement.

Specifically, complainant indicated that the agency did not comply

with paragraphs 1, 2, 3, 4, 7, 8, and 12 of the settlement agreement,

cited above.

When the agency did not respond to complainant's settlement breach claim,

complainant filed this appeal on September 10, 1998.

In response to complainant's appeal, the agency states in its letter dated

April 29, 1999, that it did not breach the settlement agreement. The

agency indicates that after complainant's notification of noncompliance,

efforts were made to implement the terms of the settlement agreement.

Specifically, the agency stated that on October 16, 1998, complainant

was paid $3,668.48 for the back pay portion of the settlement agreement;

on November 6, 1998, she was paid $5,198.81 for interest on the back

pay, which was offset by her debts of $4,132.07, resulting in $1,066.74

payment; she was retroactively promoted to EAS-21 effective PP 20/89; her

merit evaluation was processed as "good;" she was retroactively promoted

to EAS-23 effective PP 20/91; on April 20, 1999, she was paid her attorney

fees of $750.00; and on April 5, 1997, the agency sent a letter to OPM

requesting expeditious handling of her disability retirement application.

EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased.

The agency shall resolve the matter and respond to the complainant,

in writing. If the agency has not responded to the complainant, in

writing, or if the complainant is not satisfied with the agency's attempt

to resolve the matter, the complainant may appeal to the Commission for

a determination as to whether the agency has complied with the terms of

the settlement agreement or final decision.

The Commission has held that settlement agreements are contracts between

the complainant and the agency and it is the intent of the parties

as expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

The record reveals that although the settlement agreement at issue was

entered into by the parties on June 14, 1996, the agency took no action

to comply with its terms in a timely manner, except sending a letter to

OPM on April 5, 1997, under paragraph 8 thereof. Complainant notified

the agency of its noncompliance on July 15, 1997, and May 31, 1998.

However, the agency not only failed to respond, but also failed to take

any corrective action in a timely manner. Specifically, the record

reflects that complainant did not receive retroactive promotions and her

merit evaluation until April 23, 1999, her attorney fees until April 20,

1999, and her back pay and interest until October 16 and November 6,

1998, pursuant to paragraphs 1, 2, 3, and 12 of the settlement agreement.

Upon review, the Commission finds that although the settlement agreement

did not provide a specific time limit for the agency's compliance,

the agency should have fully complied within a reasonable time period.

See Gomez v. Department of the Treasury, EEOC Request No. 05930921

(Feb. 10, 1994) (where time frame for fulfillment of terms of settlement

agreement is not specified, terms must be fulfilled within a "reasonable"

amount of time). Consequently, we find that the agency's failure to take

the actions required by the settlement agreement until 2 or 3 years after

the execution of the agreement constituted a breach. As the agency has

now implemented the terms of the settlement agreement, we find that an

Order to implement the agreement is not necessary. Nevertheless, the

Commission finds that since complainant is represented by her attorney

pursuing the settlement breach claim, she is entitled to an award of

reasonable attorney's fees and costs incurred pursuing the settlement

breach claim. Accordingly, the agency's finding of no settlement breach

is REVERSED, and the case is REMANDED to the agency for compliance with

the ORDER, as stated below.

ORDER

The agency is ORDERED to pay complainant reasonable attorney's fees

and costs associated with pursuing the settlement breach claim pursuant

to the regulations set forth at 64 Fed. Reg. 37,644, 37,659-60 (1999)

(to be codified as 29 C.F.R. � 1614.501(e)). The agency shall submit

a report of compliance, including supporting documentation to verify

that the action has been fully implemented, to the Compliance Officer

as 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 (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:

April 19, 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 complainant, 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.