01974751
01-07-1999
Linda J. Reedy, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Linda J. Reedy v. United States Postal Service
01974751
January 7, 1999
Linda J. Reedy, ) Appeal No. 01974751
Appellant, ) Agency Nos. 4-J-600-1110-95
) 4-J-600-1143-95
) 4-J-600-1180-95
) 4-J-600-1181-95
v. ) 4-J-600-1182-95
) 4-J-600-1187-95
) 4-J-600-1188-95
) 4-J-600-1226-95
William J. Henderson, ) 4-J-600-1303-95
Postmaster General, ) 4-J-600-1384-95
United States Postal Service, ) 4-J-600-1385-95
Agency. ) 4-J-600-1404-95
)
DECISION
Appellant timely sought the Commission's review of her allegations that
the agency breached the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the terms of the
settlement agreement into which the parties entered.
BACKGROUND
A review of the record reveals that appellant filed twelve (12) formal EEO
complaints alleging that she had been subjected to unlawful discrimination
on the bases of race (African-American), color (Black), and sex (female).
Appellant and the agency settled the complaints on October 2, 1995.
The settlement agreement provided, in pertinent part, that:
(5) In full and complete settlement of the above cited appeal and
complaint the parties agree to the following:
The [agency] agrees it shall pay [appellant] a lump sum of $60,000 in
damages for her employment discrimination claims and any other claims
that she may have brought against the [agency], its agents or assigns
prior to the date of this agreement.
The [agency] agrees not to tolerate, on the part of any [agency]
employee or the [agency] itself, any retaliation or reprisals in any
shape or form against [appellant]. Any such activity is to be met
with swift and appropriate actions by the [agency] to eliminate them.
By letters to the agency dated June 13, 1996, and August 21, 1996,
appellant alleged that the agency had breached the settlement agreement
when it failed to provide her a lump sum payment of $60,000, and instead
gave her one check for $50,000, and another, made out jointly to appellant
and her former attorney, for $10,000. A review of the record discloses
that the agency failed to respond to appellant's allegations of breach.
Noting that thirty-five (35) days had passed since she notified the
agency of its alleged noncompliance, on May 9, 1997, appellant sought
the Commission's review to determine if the agency was in breach of
the settlement agreement. Appellant requested, as remedial relief,
reinstatement of her complaints from the point processing ceased.
On appeal, appellant also alleged that the agency, while placing her in
the position contemplated by the October 2, 1995 settlement agreement,
has not allowed her to assume the duties that correspond with the position
she occupies. Additionally, appellant alleged that she was subjected
to a number of incidents which were designed to harass her and cause a
hostile work environment. Appellant contends that these actions are in
violation of section 5(h) of the settlement agreement.
ANALYSIS AND FINDINGS
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. In addition, 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 consistently held that settlement agreements are
contracts between appellant and the agency, and 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).
Initially, we note that appellant raised several new allegations of
harassment and discrimination which were in violation of section 5(h) of
the settlement agreement. The Commission has held that a complaint which
alleges reprisal or further discrimination in violation of a settlement
agreement's "no reprisal" clause, is to be processed as a separate
complaint and not as a breach of settlement. Bindal v. Department
of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990); 29
C.F.R. �1614.504(c). Accordingly, if appellant wishes to pursue those
allegations, she is advised to initiate contact with an EEO Counselor
and begin the EEO process under 29 C.F.R. �1614.
We find that the agency was in breach of the settlement agreement.
As contemplated by the agreement, appellant was to receive a lump
sum payment of $60,000. However, a review of the record discloses
that appellant was instead issued two checks, i.e., one for $50,000
and the other, made out jointly to appellant and her former attorney,
for $10,000. As the agency failed to pay appellant in accordance with
the plain language of the agreement, we find that it was in breach of
the settlement.
When an agency is found to be in breach of a settlement agreement,
it is within the Commission's discretion to order either that the
terms of the agreement be specifically enforced or that the complaint
be reinstated for further processing from the point processing ceased.
29 C.F.R. �1614.504(c). In the present case, while appellant requested
the reinstatement of her prior complaints, we note that many of the
terms of the agreement have been implemented, for example, a transfer
to a Level EAS-16 Customer Service Representative, restoration of 1,024
hours of appellant's leave balance, and payment of $50,000 individually,
and $10,000 jointly to appellant and her former attorney. Consequently,
we find that equitable considerations dictate that the terms of the
agreement be specifically enforced. The agency is hereby instructed on
remand to take the actions as directed in the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days, notify appellant of her option
to return the check for $10,000 made payable jointly to herself and
her former attorney, at which time the agency will reissue a check for
$10,000 payable solely to appellant. If appellant declines or fails to
return the previously issued check within fifteen (15) calendar days
of her receipt of the notice from the agency, the agency shall notify
appellant that the terms regarding payment of the $60,000 have been
implemented as modified.
A copy of the agency's notice to appellant regarding her options and
a copy of either the correspondence accompanying the issuance of a
new check or the notice of completion of the terms of the agreement
regarding payment of $60,000 must be sent to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Jan. 7, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations