01993018
12-07-2000
Norma J. Tharp v. United States Postal Service 01993018 12-07-00 .Norma J. Tharp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Norma J. Tharp v. United States Postal Service
01993018
12-07-00
.Norma J. Tharp,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993018
Agency No. 4-G-752-0036-97
DECISION
On March 1, 1999, Norma J. Tharp (hereinafter referred to as complainant)
initiated an appeal to the Equal Employment Opportunity Commission
(Commission) for a determination as to whether the agency has complied
with the terms of a settlement agreement which the parties entered
into.<1> See 29 C.F.R. �1614.402; 29 C.F.R. �1614.504; and 29
C.F.R. �1614.405.
Complainant filed a formal EEO complaint in November 1996, alleging
that she was subjected to discrimination when she was issued a notice of
termination. In November 1997, an Arbitrator found that the removal was
improper, and reduced the action to a suspension. The Arbitrator stated
that complainant was entitled to backpay and allowances, less any money
earned from the end of the suspension until the date of reinstatement,
plus interest, and the restoration of seniority. The parties then entered
into a settlement agreement in July 1998, whereby complainant agreed
to withdraw her EEO complaint in exchange for the agency's compliance
with the Arbitrator's decision. By letter dated November 12, 1998,
complainant notified the agency of its failure to comply with the November
1997 decision of the Arbitrator in breach of the settlement agreement.
Specifically, complainant stated that the agency failed to pay her for
the period from June 21, 1997, through December 13, 1997, and did not
pay her interest. Complainant also noted that she did not receive the
proper step increases due to an excess of leave without pay (LWOP).<2>
After receiving no response from the agency, complainant filed the
instant appeal.
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. Roberts v. USPS, EEOC
Appeal No. 01842193 (May 8, 1985). The Commission has further held that
the face of the agreement best reflects the understanding of the parties.
See Wilson v. EEOC, EEOC Appeal No. 01881684 (October 13, 1989).
In the case at hand, the record fails to show that the agency complied
with the Arbitrator's decision, as provided for in the settlement
agreement. Specifically, while the agency withheld backpay for the
period from June 21, 1997, through December 13, 1997, allegedly because
complainant failed to seek outside employment, such action was not
specified by the Arbitrator. Further, the agency failed to provide any
evidence showing the complainant received interest or had her seniority
restored. Accordingly, we find that the agency breached the July 1998
settlement agreement.
ORDER
The agency is ORDERED to specifically implement the terms of the July 1998
settlement agreement. Specifically, the agency shall, within sixty (60)
calendar days of the date on which this decision becomes final, comply
with the November 1997 decision of the Arbitrator which stated that:
The [agency] is directed to pay [complainant] backpay and allowances
(minus money earned by [complainant] between the end of the 14-day
suspension and the date of her reinstatement) plus interest, to restore
her seniority, and to make her whole.
Documentation showing that the agency has implemented the terms of the
settlement agreement must be sent to the Compliance Officer, as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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
___12-07-00_______________________________
Date
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 claimant, claimant'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.
2Complainant appears to be arguing that the agency's failure to pay
her for the period from June 21, 1997, through December 13, 1997,
resulted in a charge of LWOP, and, thus, delayed her step increases.
The Commission notes that a �make whole� remedy would include appropriate
step increases.