Jeanette S. Daugherty, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionMar 21, 2012
0120120565 (E.E.O.C. Mar. 21, 2012)

0120120565

03-21-2012

Jeanette S. Daugherty, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.




Jeanette S. Daugherty,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Appeal No. 0120120565

Agency No. 1C-431-0043-08

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the Agency dated October 13, 2011, finding that it was

in compliance with the terms of the settlement agreement into which the

parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b);

and 29 C.F.R. § 1614.405.

BACKGROUND

At the time of events giving rise to this complaint, Complainant

worked at the Agency’s Citygate Processing and Distribution Center in

Columbus, Ohio. Believing that the Agency subjected her to unlawful

discrimination, Complainant contacted an Agency EEO Counselor to

initiate the EEO complaint process. On May 9, 2011, Complainant and

the Agency entered into a settlement agreement to resolve the matter.

The settlement agreement provided, in pertinent part, that:

The Agency also agrees that it will provide to Complainant a Casual

appointment of 360 days following the execution of this agreement.

Complainant agrees that this Casual appointment is subject to her

successful completion of any Agency hiring requirement protocol.

This Casual appointment will be at the Citygate P&DC. The Agency further

agrees that it will place Complainant into the position of Non-Career

Assistant, subject to the ratification of the APWU Collective Bargaining

Agreement, and further subject to the needs of the Agency to fill the

position of Non-Career Assistant. In the event that these conditions are

satisfied, Complainant will be converted from her Casual appointment to

the position of Non-Career Assistant pursuant to the terms of the APWU

Collective Bargaining Agreement (CBA). Should the "Non-Career Assistant"

(as long as it is still the position intended to replace the position

of Casual) the Complainant will be placed into that position.

By letter to the Agency dated July 25, 2011, Complainant alleged that

the Agency was in breach of the settlement agreement, and requested that

the Agency specifically implement its terms. Specifically, Complainant

alleged that the Agency failed to convert Complainant to a Postal Support

Employee position in July 16-23, 2011, when some 70 others underwent

the conversion.

In its October 13, 2011 FAD, the Agency concluded that it had complied

with the settlement agreement. The Agency noted that Complainant had

been placed in the Causal appointment. However, based on an affidavit

from the Human Resources Manager (Manager), the CBA ended the Casual

position. Instead, the CBA and Agency agreed to the creation of the

Postal Service Employee position (PSE). As such, the Manager indicated

that the intent of the settlement agreement was to convert Complainant

into the PSE position once the CBA was ratified. According to the CBA,

the Manager averred that Complainant needed to take the placement exam.

Complainant was notified on July 20, 2011, that she was scheduled to take

the exam. Since Complainant has not taken the exam, she is still in a

Casual assignment. Therefore, the Agency determined that it is because

Complainant has not taken the exam that has kept it from converting

Complainant to the PSE position.

CONTENTIONS ON APPEAL

Complainant appealed asserting that the Agency has changed the terms

of the agreement. Complainant argued that the settlement agreement

provided for the conversion of Complainant to the Non-Career Assistant

or, what is now known as a PSE position, when two events occurred.

The prerequisites were the ratification of the CBA and the needs of

the Agency. Complainant asserted that both of these events occurred

and yet Complainant was not converted to a PSE position. As such,

Complainant believed that the Agency violated the settlement agreement.

Complainant asked that the Commission order the Agency to comply with

the provision of the settlement agreement.

The Agency responded by restating the arguments provided in its

determination. The Agency asked that the Commission affirm its

determination finding no violation 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.

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. Dep’t of Def., EEOC Request

No. 05960032 (December 9, 1996). The Commission has further held that

it is the intent of the parties as expressed in the contract, not some

unexpressed intention, that controls the contract’s construction.

Eggleston v. Dep’t 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 O v. U.S. Postal Serv.,

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).

In the instant case, we find that the Agency breached the settlement

agreement. We note that the first part of the provision at issue is

that the Agency would provide Complainant with a Casual appointment of

360 days. The record shows that Complainant was assigned and continued

to be assigned to a Casual appointment.

The second part of the provision at issue states that the Agency agreed

“that it will place Complainant into the position of Non-Career

Assistant, subject to the ratification of the [CBA], and further

subject to the needs of the Agency to fill the [position].” As noted,

the Non-Career Assistant position, following the ratification of the

CBA was replaced by the PSE. The Commission finds that there are two

requisite events that needed to occur for Complainant to be placed into

the now named PSE position, namely the ratification of the CBA and the

need of the Agency. Based on the record, we find that the CBA had been

ratified and that the Agency needed to fill the PSE positions based on

the conversion of 70 employees. Further, the Agency sought to reassign

Complainant pending the exam. Finding that the requisite conditions have

been met, we determine that the Agency failed to convert Complainant to

the PSE position in violation of the settlement agreement.

Complainant has requested specific performance of the settlement

agreement rather than reinstatement of her underlying complaint and

we will grant this request. We further note that because complainant

has prevailed on her breach claim, she is entitled to attorney's fees

related to the litigation of her breach claim. See Buckhannon Bd. & Care

Home, Inc. v. West Va. Dep’t. of Health and Human Serv., 532 U.S. 598

(2001); Spriesterbach v. U.S. Postal Serv., EEOC Request No. 05990158

(Nov. 27, 2001).

CONCLUSION

Accordingly, the Commission REVERSES the Agency's finding that it did not

breach the settlement agreement and REMANDS this matter to the Agency

so that it can provide complainant with the remedies specified in the

order set forth below.

ORDER (C0610)

The Agency is ordered to shall place Complainant into the PSE position

within 30 calendar days of the date this decision becomes final.

The Agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by

29 C.F.R. § 1614.501(e)(1)(iii)), 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 (K0610)

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 77960, Washington, DC

20013. 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) (1994 & Supp. IV 1999).

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 (M0610)

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 77960,

Washington, DC 20013. 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 (R0610)

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 (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

March 21, 2012

__________________

Date

2

0120120565

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120120565