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
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0120120565
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120565