01983146
03-19-1999
Dorothea Massie, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dorothea Massie v. United States Postal Service
01983146
March 19, 1999
Dorothea Massie, )
Appellant, )
)
)
v. ) Appeal No. 01983146
) Agency No. 4C-080-1012-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning the parties settlement agreement entered into
a result of her complaint. The appellant had alleged violations of �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The final agency decision was dated February 20, 1998. The appeal was
postmarked March 19, 1998. Accordingly, the appeal is timely (see,
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency improperly denied the
appellant's claim for attorneys fees pursuant to a settlement agreement
on the basis that her request was untimely.
BACKGROUND
The record indicates that on August 21, 1995, appellant initiated
contact with an EEO Counselor regarding her complaint. Informal efforts
to resolve concerns were unsuccessful. On November 14, 1995, appellant
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the basis of a physical disability.
The parties reached a settlement on January 5, 1998 and executed a
written settlement agreement that same day which stated in pertinent
part as follows:
"The Agency agrees to pay reasonable attorney fees in accordance with
the applicable regulations. Any petition for fees must be submitted
to:
Office of EEO Compliance and Appeals
Allegheny/Mid-Atlantic Areas
P.O. Box 40596
Philadelphia, PA 19197-0596
within 30 calendar days of the date this agreement is executed."
On February 20, 1998, the agency issued a final decision denying
appellant's Motion for Award of Attorneys' Fees and Legal Costs filed
pursuant to the Settlement Agreement. Specifically, the agency found that
the appellant submitted her request for attorneys fees on February 17,
1998 outside the 30 day time period called for in their Agreement. Under
the parties agreement, the fee request was due no later than February 4,
1998.
The appellant's attorney contends that his office sent a letter on
or about January 26, 1998 to the above address informing the agency
they would be unable to submit the request within the 30 day period.
They explained that one of the attorneys on the case had suffered a sudden
death in his family on January 23, 1998 which required him to be away.
The agency contends it never received such notice from the appellant
and that the only correspondence it received was the actual attorneys'
fee request on February 17, 1998.
ANALYSIS AND FINDINGS
EEOC Regulation �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.
Settlements are contracts between the parties. Eggleston v. Department
of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990).
We have held that where an agency has not abided by time limits stated
in a settlement agreement but has completed all agreed upon actions,
there is substantial compliance and no breach of the agreement. Lazarte
v. Department of Interior,EEOC Appeal No. 01954274 (1996). Where there
is no harm demonstrated by the complaining party it is proper to find
no breach. Id. Conversely, the same is true for complaining parties.
In the instant case, the agency received the appellant's request for
attorneys fees only thirteen days after the 30 day period the parties
had agreed to in their settlement agreement. Although the appellant's
attorney could have proceeded with more diligence in verifying the
agency's receipt of their correspondence, we find that there was
substantial compliance with the settlement agreement on the part of
the appellant. In addition, the agency did not articulate any harm or
prejudice suffered as a result of the delay in getting the fee request
and therefore, it should be accepted and acted upon by the agency.
CONCLUSION
Accordingly, we REVERSE the agency's denial of the appellant's Motion for
Attorney's Fees and Legal Costs and REMAND it for further consideration
by the agency.
ORDER
The agency is ORDERED to accept the appellant's Motion for an Award of
Attorneys Fees and Legal Costs in accordance with the parties Settlement
Agreement and implement an award for attorneys fees.
The agency is further directed to submit a report of compliance to
the Compliance Officer as referenced below. The report should include
supporting documentation indicating the action taken by the agency in
compliance with this Order.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If
the agency does not comply with the Commission's order, the appellant may
petition the Commission for enforcement of the order. 29 C.F.R. s1614.503
(a). The appellant 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. ss 1614.408,
1614.409, and 1614.503 (g). Alternatively, the appellant 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. ss
1614.408 and 1614.409.A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. s2000e-16(c) (Supp. V 1993). If the appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. s1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to consider and to award attorneys
fees consistent with a Settlement Agreement. However, if you wish to file
a civil action, you have the right to file such action in an appropriate
United States District Court. It is the position of the Commission that
you have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 19, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations