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.