01991504
11-09-1999
Carla Y. Williams, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carla Y. Williams, )
Complainant, )
)
) Appeal No. 01991504
) Agency No. 4-J-600-0221-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 1, 1998, the complainant filed an appeal with this Commission
after not receiving a response from the agency to her letter requesting
that the agency reconsider its August 14, 1998 letter stating that the
August 4, 1998 settlement agreement (SA) was null and void.<1> The
agency issued a Final Decision (FAD) dated October 13, 1998, finding
that it would not enforce the August 4, 1998 settlement agreement that
the complainant and the Manager of Transportation Network for the Carol
Stream P&DC had signed. See 64 Fed. Reg. 37,644, 37,659-660 (1999) (to
be codified at 29 C.F.R. �� 1614.402, 1614.504(b)); EEOC Order No. 960,
as amended.
The SA provided that:
I, [the complainant], do hereby voluntarily withdraw my EEO Complaint
based on the stipulation(s) that: I shall be permanently assigned to
the position of General Clerk - PS-05, in Plant Support 0850 start ABD
1700 EBD - N/S [days] if Saturday and Sunday, effective Saturday August
15, 1998[.] My present assignment of BBM Clerk shall be posted for bid,
consistent with contractual provisions. This shall constitute a �dual
assignment� for vacancy no. 7855826 and the CBT 712 is hereby waived my
having demonstrated this skill requirement during my 6 year[s], temporary
assignment to the subject position. The next vacancy which occurs for the
position of General Clerk In-Plant Support shall not be posted unless the
employer determines that it is needed. There shall no back-pay as part
of thissettlement, nor attorney or representation fees, and no other terms
or conditions of this agreement which are not expressly contained herein.
By memorandum dated August 14, 1998, the Manager of Human Resources
informed both the complainant and the responding management official
who signed the SA that the agreement was null and void because it was
improperly done. Specifically, the memorandum stated that the SA would
not be implemented because the management official who signed it did not
have the authority to either waive the CBT 712 typing exam or prepare and
consummate an EEO SA, the EEO Counselor/Investigator had the authority
to present and consummate an EEO SA but he was on vacation that week,
the SA was prepared on the wrong form and proper coordination with other
managers including personnel was bypassed.
By letter to the agency dated August 22, 1998, the complainant's
representative requested that the agency reconsider its decision not to
honor the SA because the responding management official did have the
authority to enter into an EEO SA and could waive the CBT 712 typing exam.
The complainant's representative also stated that nothing in Title
VII or EEOC's management directives (MD-110) and procedures prevented a
settlement of an EEO complaint without the involvement or assistance of an
agency Counselor/Investigator. Further, the complainant's representative
asserted that the SA was valid and binding and requested a response from
the agency by August 26, 1998.
Upon not receiving a response from the agency the complainant's
representative filed the instant appeal on September 1, 1998, and
requested that the SA be enforced. Specifically, the complainant's
representative asserted that the agency official who signed the SA
did have authority to waive the CBT 712 typing exam pursuant to the
collective bargaining agreement (CBA). Additionally, the complainant's
representative stated that the agency had no clear �designation of
authority for signing of settlement agreements.� The complainant's
representative asserted that the agency's other listed reasons for
voiding the SA were pretextual and border on �bad faith.� Moreover,
the complainant's representative asserted that because the complainant
had performed in a General Clerk assignment for the last six years
and continues to perform in that assignment, that the agency had thus
ratified the SA.
On October 13, 1998, the agency issued its FAD, reiterating that the
SA was not enforceable because it violated the agency's rules and
regulations. Specifically, the agency stated that the CBT 712 typing
exam was a national qualification standard which could not be waived
at the local level and that the management official who signed the SA
did not have the authority to create a position in another department
as stated in the SA. In response to the complainant's appeal, the
agency supported its decision with several pages from EL-303, TL 3,
�Qualification Standards - Bargaining Unit Positions� (EL-303) and a
copy of a position description showing that the CBT 712 typing exam
cannot be substituted with a certificate of proficiency. Additionally,
the agency submitted a letter written to the Manager of Human Resources,
dated September 9, 1998, signed by a Senior Personnel Services Specialist,
which stated that the Manager of Transportation Networks (the official
who signed the SA) could not create a position for the In-Plant Support
department.
64 Fed. Reg. 37,644, 37,660 (1999) (to be codified at 29 C.F.R. �
1614.504(a) provides that any SA knowingly and voluntarily agreed to
by the parties, reached at any stage of the complaint process, shall
be binding on both parties. A SA 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 previously held that a signed SA,
in order to be valid and enforceable, must be executed by an authorized
representative of the agency. See Soliz v. U.S. Postal Service, EEOC
Request No. 05901010 (October 25, 1990). Moreover, the Commission has
held that the agency must present evidence that the signatory to the
agreement lacked the authority to agree to its terms, and even if it
does show that the signatory lacked the authority to bind the agency
to the SA's terms, subsequent conduct by the agency may ratify the SA.
See Jacobsohn v. Department of Health and Human Services EEOC Request
No. 05930689 (June 2, 1994).
In the instant case, the agency stated generally that the SA violates
agency rules and regulations. Specifically, the agency stated that the
CBT 712 typing exam could not be waived at the local level because it was
a national qualification standard. To support this contention the agency
submitted several pages of the EL-303. This document shows that General
Clerks and Schemes Clerks are required to demonstrate the ability to type
at a rate of 45 words per minute in a five minute test, demonstrated
by successful completion of the Postal Service Test 712. The document
further states that �Certificates of proficiency� are not acceptable.
The complainant asserts that the typing exam can be waived pursuant
to the CBA, but she failed to provide supporting evidence on appeal.
The agency does not address this assertion.
Additionally, the agency contended that the SA could not be enforced
because the Manager of Transportation Networks (MTN) (the agency
signatory) had no authority to establish a position in the In-Plant
Support department. The agency's support for its position in the record,
appears to be a letter written by a Senior Personnel Staffing Specialist
to the Manager of Human Resources.
Accordingly, under these circumstances and with the evidence presented in
this appeal, we find that the August 4, 1998 SA is valid and enforceable.
ORDER
The agency is ORDERED to reinstate the complainant's complaint at the
point where processing ceased comply with the terms of the settlement
agreement entered into between the complainant and the agency on August
4, 1998. The agency shall so comply within thirty (30) calendar days
of the date this decision becomes final. The agency is further directed
to submit a compliance report, with proof of all relevant actions taken,
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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:
April 3, 000
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1 On 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.