Linda J. Reedy, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 7, 1999
01974751 (E.E.O.C. Jan. 7, 1999)

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