01990081
10-04-2001
Larry C. Holland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Larry C. Holland v. United States Postal Service
01990081
October 4, 2001
.
Larry C. Holland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01990081
Agency No. 4F-900-1161-94
DECISION
INTRODUCTION
Complainant filed a timely appeal with the U.S. Equal Employment
Opportunity Commission (�EEOC� or the �Commission�) from a final decision
(�FAD�) by the United States Postal Service (�the agency�), finding that
the agency was in compliance with the terms of a settlement agreement
signed by the parties on September 19, 1996. Complainant contends that
the agency is in continuing breach of the agreement by failing to pay
him the proper amount of back pay, while the agency asserts that it
never breached the settlement in the first place. For the reasons set
forth below, we find that the agency did in fact breach the settlement
agreement when it failed to hire complainant for a position to which
he was entitled under the agreement. We also order the agency to fully
implement the agreement -- as it has already agreed to do -- by providing
him with retroactive reinstatement, benefits, and back pay.
BACKGROUND
The settlement agreement at issue provided, in pertinent part, that:
�The Complainant will resign from the Agency for personal reasons
effective May 25, 1994.�
�The Complainant will be notified and tested for clerk and maintenance
(he is 10 PT VET) when the exams are administered.�
�The Complainant must pass all personal and medical suitability issues.�
�The Complainant will be given the next available PTF vacancy or part
time regular position in the Irvine post office for clerk or maintenance.
There will be a new 90 day probationary period.�
Settlement Agreement Between the Agency and Complainant (Sept. 19, 1996).
On June 1, 1998, complainant (through a union representative) notified
the agency that he believed it was in breach of the settlement agreement.
According to complainant, he:
. . . took the in service test on October 24, 1996 and his test score of
83.4% was mailed to him . . . on November 10, 1996. To this date he has
not received any communication from the Agency notifying him to report for
a physical or any other testing in preparation for being hired. On April
12, 1997; April 26, 1997; May 24, 1997 and June 7, 1997 the Agency hired
a new PTF clerk on each of these days without giving Complainant any
consideration. These facts were not discovered until today when the
Complainant contacted the American Postal Workers Union inquiring as
to why he had not been hired. Therefore, the instant breach is being
filed requesting that the Complainant be hired immediately retroactive
to April 12, 1997 with full back pay, rights and benefits with interest.
Letter from Complainant to the Agency Alleging Breach of Settlement
Agreement (June 1, 1998).
This notification spurred the agency to action. The parties met on August
7, 1998 to discuss the alleged breach of settlement. At this meeting,
the agency agreed to reinstate complainant as a distribution clerk,
part-time flexible PS-05, at the Irvine post office. The agency also
apparently agreed to provide him with back pay beginning on April 12, 1997
(the date the agency first hired a new clerk who was not complainant).
See Letter from the Agency to Complainant Confirming Mutual Understanding
(Aug. 14, 1998) (where the agency stated that �[w]ith respect to your back
pay, you were informed that the interim earnings are to be deducted from
the amount owed to you. Therefore, you should begin gathering evidence
of your earnings since April 12, 1997 . . . .�).
On September 23, 1998, the agency issued its final decision (�FAD�)
on whether it had ever breached the agreement in the first place.
The agency claimed that:
. . . you were offered a PTF Clerk position at the Irvine Post Office and
. . . began work on August 28, 1998. In addition, the documented evidence
demonstrates that you were given a seniority date of April 12, 1997.
This office has been informed that the back paper work which will cover
the period from April 12, 1997, when you should have been employed,
through August 28, 1998, when you actually began employment [sic].
Therefore, it is the decision of the agency that the settlement agreement
has not been breached, since the Personnel error has been corrected.
Final Agency Decision Denying Breach of Settlement Agreement (Sept. 23,
1998) [emphasis added].
Complainant appealed this FAD to EEOC on September 28, 1998. In his
appeal, complainant argues that even though he had been reinstated
effective April 12, 1997, �the back pay issue is still a problem.� More
specifically, complainant says, the agency:
. . . is contending that the individual [originally hired on that date]
. . . only worked 38 hours a week from April 12, 1997 through August
28, 1998. Conversation with [the individual] . . . made us aware that
he worked overtime during the period in question. A copy of the request
for his work hours is attached for your review. As soon as we receive
them from the Agency, a copy will be forwarded to your office.
Appeal to EEOC (Sept. 28, 1998).
No such copy was ever forwarded to EEOC, and there is thus no definitive
evidence in the record detailing the hours worked during the period
from April 12, 1997 through August 28, 1998 by the original hire
(not complainant). Indeed, there is no subsequent correspondence from
complainant in the record at all. There is also no further response
from the agency in the record either (on the appeal generally or the
back pay issue specifically).
ISSUES PRESENTED
Whether the agency did in fact breach the settlement agreement at issue;
and if so
What remedies are available to complainant as a result.
FINDINGS AND ANALYSIS
Any complainant may appeal to EEOC an agency's alleged noncompliance
with a settlement agreement, provided certain regulatory prerequisites
are met. See 29 C.F.R. � 1614.401(e). These prerequisites are found
at 29 C.F.R. � 1614.504. According to these rules:
[i]f the complainant believes that the agency has failed to comply with
the terms of a settlement agreement . . . the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of when the complainant knew or should have known of the alleged
noncompliance. The complainant may request that the terms of the
settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased . . . . The agency shall resolve the matter and respond
to the complainant, in writing. If the agency has not responded to the
complainant, in writing, or if the complainant is not satisfied with the
agency's attempt to resolve the matter, the complainant may appeal to
the Commission for a determination as to whether the agency has complied
with the terms of the settlement agreement . . . . The complainant may
file such an appeal 35 days after he or she has served the agency with
the allegations of noncompliance, but must file an appeal within 30 days
of his or her receipt of an agency's determination.
29 C.F.R. �� 1614.504(a), (b).
Complainant has complied with these regulatory prerequisites. He sent
written notice of the alleged breach to the agency's EEO Compliance
and Appeals Coordinator on June 1, 1998 (the same day he first learned
of the noncompliance), requesting that the terms of the settlement be
specifically implemented. Thus, complainant provided proper notice
of noncompliance to agency EEO officials. He claims that although the
agency reinstated him retroactive to April 12, 1997, it did not agree to
pay him the appropriate amount of back pay. Finally, he filed this appeal
within 30 days of receiving the FAD asserting that no breach had occurred.
Thus, complainant timely filed this appeal, and has a regulatory right
to seek our determination as to whether there was noncompliance by the
agency here.
Governing law provides that �[a]ny settlement agreement knowingly and
voluntarily agreed to by the parties, reached at any stage of the
complaint process, shall be binding on both parties.� 29 C.F.R. �
1614.504(a). We presume, and the parties do not dispute, that the
settlement agreement at issue was �knowingly and voluntarily agreed to�
by both complainant and the agency. Thus, its provisions -- all of them
-- are binding on the agency. This includes, of course, the agency's
promise to hire complainant for �the next available PFT vacancy or part
time regular position in the Irvine post office for clerk or maintenance.�
Settlement Agreement Between the Agency and Complainant (Sept. 19, 1996)
[emphasis added].
The agency simply did not keep this promise. Complainant contends
that the agency hired four separate individuals to fill clerk and/or
maintenance positions before it reinstated complainant. The agency
does not dispute this fact. Thus, the uncontested record reveals that
the agency was required under the settlement to hire complainant for
the next available clerk position, and that it failed to do so -- four
times in a row. Whether this failure to hire complainant was a mere
�personnel error� (as the Agency called it in its FAD) or intentional,
it was a breach of the settlement just the same.
We must therefore decide what remedies are available to complainant as
a result. Under applicable law, �[i]f the Commission determines that the
agency is not in compliance and the noncompliance is not attributable to
acts or conduct of the complainant, it may order such compliance or it
may order that the complaint be reinstated for further processing.� 29
C.F.R. � 1614.504(c). From the record, it appears to us that complainant
is seeking to have the agreement enforced (and not to have his complaint
reinstated). The agreement itself, of course, required the agency to
place complainant in the position it filled with someone else on April
12, 1997. We therefore find that the only way to �order compliance�
with this agreement is to require the agency to reinstate complainant,
effective April 12, 1997, in a part-time flexible or part-time regular
position for clerk or maintenance in the Irvine post office, and to
provide him with the benefits and pay he would have received had he
actually been hired on that date.
The record suggests the agency has attempted to do much of this already.
It placed the complainant in a clerk position in the Irvine office
effective August 28, 1998 (retroactive to April 12, 1997). It also
offered complainant back pay. The only lingering dispute is apparently
over the precise amount of the back pay due to complainant, particularly
with respect to the amount of overtime complainant would have earned.
We therefore order the agency to provide back pay for the period beginning
April 12, 1997 and ending August 28, 1998. The precise amount of this
back pay must be calculated using the amount representing the average pay,
including overtime and holiday pay, received by the Irvine facility's
part-time flexible or part-time regular clerk and maintenance employees
between April 12, 1997 and August 28, 1998. Cf. Adesanya v. United States
Postal Service, EEOC Petition No. 04980016 (Feb. 19, 1999) (holding that
the appropriate amount of overtime payable is to be calculated by taking
the average amount of overtime worked by similarly situated employees).
This amount must then be reduced by earnings complainant received
from other employment positions, if any, held by complainant during
this period.
CONCLUSION
The FAD issued in this case is reversed. We conclude that the agency
did in fact breach the September 19, 1996 settlement agreement when it
failed, on April 12, 1997, to hire complainant for a position to which he
was entitled under the settlement agreement. We further conclude that
the agency must fully comply with the terms of the settlement agreement
by providing retroactive reinstatement and benefits, and back pay.
In this respect, the Commission will order the agency to provide the
relief detailed in the ORDER below to the extent the agency has not yet
done so. Therefore, should the agency have failed to provide such relief,
and does not comply with the ORDER below, complainant may petition the
Commission for enforcement of the ORDER. See 29 C.F.R. � 1614.503(a).
ORDER (D0900)
Accordingly, to the extent that the agency has not yet done so, the
agency must:
Place complainant in a part-time flexible or part-time regular position
in the Irvine post office for clerk or maintenance, effective April
12, 1997.
Pay the appropriate amount of back pay for the period from April 12,
1997 to August 28, 1998, with interest if applicable, as calculated
in accordance with 5 C.F.R. � 550.805, and provide other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The amount
of this back pay shall be calculated using the amount representing
the average pay, including overtime and holiday pay, received by the
Irvine facility's part-time flexible and part-time regular clerk or
maintenance employees between April 12, 1997 and August 28, 1998.
This amount shall then be reduced by earnings complainant received
from other employment positions, if any, held by complainant during
this period. This amount shall also be reduced by back pay, if any,
the agency has already tendered to complainant.
Complainant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. The agency will provide complainant
with evidence supporting its calculation of back pay (and interest,
if applicable), including evidence proving the average pay, including
overtime and holiday pay, received by the Irvine facility's part-time
flexible and part-time regular clerk and maintenance employees between
April 12, 1997 and August 28, 1998. If there is a dispute regarding the
exact amount of back pay, the agency shall issue a check to complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the paragraph below
entitled �Implementation of the Commission's Decision.�
Submit a report of compliance, as provided in the paragraph below
entitled �Implementation of the Commission's Decision.� The report shall
include supporting documentation of the agency's calculation of back pay
(including interest, if applicable) and other benefits due complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. See 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 (K0501)
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 complainant. If the
agency does not comply with the Commission's order, complainant may
petition the Commission for enforcement of the order. See 29 C.F.R. �
1614.503(a). 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, 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.� See 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 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 (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 complainant's complaint. However, if complainant wishes
to file a civil action, complainant has the right to file such action
in an appropriate United States District Court within ninety (90)
calendar days from the date that complainant receives this decision.
In the alternative, complainant may file a civil action after one hundred
and eighty (180) calendar days of the date complainant filed his complaint
with the agency, or filed his appeal with the Commission. If complainant
files a civil action, complainant 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 complainant's case in
court. �Agency� or �department� means the national organization, and
not the local office, facility or department in which complainant works.
Filing a civil action will terminate the administrative processing of
the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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
October 4, 2001
__________________
Date