01983665
06-15-1999
Eva. B. Damario, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Eva. B. Damario v. United States Postal Service
01983665
June 15, 1999
Eva. B. Damario, )
Appellant, )
) Appeal No. 01983665
v. ) Agency No. 1K-211-1046-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
On March 31, 1998, appellant filed this appeal with the Commission
alleging that the agency failed to comply with the terms of the settlement
agreement dated February 9, 1998. The agency in its response stated that
it had complied with the terms of the agreement.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Appellant filed a formal EEO complaint on February 24, 1994, alleging
that she was discriminated against on the bases of physical disability
(bilateral overuse hand condition), and mental disability (agitated
depression), and denied reasonable accommodation. The complaint was
accepted for investigation. After the investigation, appellant requested
a hearing before an EEOC Administrative Judge (AJ). Prior to a hearing,
the complaint was resolved through a settlement agreement entered into on
February 9, 1998. In relevant part, the agency agreed to pay appellant
the sum of $40,000 to cover her claim for compensatory damages for pain
and suffering no later than 14 calendar days from the date on which the
settlement agreement was signed by all parties.
On February 23, 1998, appellant notified the agency EEO Director that
payment had not been received and that the agency had thus failed to
comply with the terms of the agreement. Appellant requested that the
agency pay the $40,000 immediately and, in addition, pay the attorney's
fees appellant incurred as a result of the agency's non-compliance.
There is no record that the agency responded to appellant's notification
and request for compliance.
On March 31, 1998, appellant appealed the agency's non-compliance to
the Commission. Appellant argued that the agency's failure to adhere
to the stipulated 14 day payment caused her undue financial hardship.
On June 23, 1998, the agency responded to the Commission's request for
information by submitting a copy of a check for the sum of $40,000,
dated June 1, 1998, issued to appellant.
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. It
further provides that if the complainant believes that the agency has
failed to comply with the terms of a settlement agreement or final
decision, 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 agreement be specifically implemented, or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The question of whether a breach has occurred is one of contract
interpretation. The Commission has regularly held that a settlement
agreement between an EEO complainant and a federal agency is a
contract subject to ordinary principles of contract interpretation and
construction. Papac v. Department of Veterans Affairs, EEOC Request
No. 05910808 (December 12, 1991); Shuman v. Department of the Navy,
EEOC Request No. 05900744 (July 20, 1990). In interpreting settlement
agreements, the Commission has applied the contract principle known as
the "plain meaning rule" which holds that where a writing is unambiguous
on its face, its meaning is determined from the four corners of the
instrument without resort to extrinsic evidence. Smith v. Defense
Logistics Agency, EEOC Appeal No. 01913570 (December 2, 1991).
The Commission has previously found substantial compliance with the
terms of a settlement agreement in cases where agencies have committed,
in good faith, a technical breach of a provision of the agreement which
did not undermine its purpose or effect. See e.g., Baron v. Dept. of
the Treasury, EEOC Request No. 05930277 (September 30, 1993) (Two week
delay in transfer of official and letter of regret rather than letter
of apology found to be substantial compliance); Ramirez v. U.S. Postal
Service, EEOC Request No. 05930283 (August 12, 1993) (Substantial
compliance found notwithstanding dispute over manner in which overtime
opportunities required under agreement were granted).
Unlike the cases above where the breaches were de minimus, the agency
here failed to comply with a clear stipulation that appellant receive
prompt payment within 14 calendar days from the date of ratification.
The agency tendered payment 97 days beyond the date agreed upon by the
parties, and only after appellant pressed her claim by appealing to
the Commission. Based upon the foregoing, the Commission finds that
the agency has clearly not shown substantial compliance with the terms
of the agreement.
Because of the agency's breach of what we find to be a significant
stipulation in the agreement, the Commission finds that appellant
is entitled to an award of interest for the agency's delay in paying
compensatory damages. See Cole v. United States Postal Service. EEOC
Request No. 05910450 (February 1997). Section 717(d) of the Civil Rights
Act of 1964, 42 U.S.C. �2000e 16(d), as amended by section 114(2) of the
Civil Rights Act of 1991, Pub.L. 102-166 (Nov. 21, 1991), provides that
"the same interest to compensate for delay in payment shall be available
[to federal employees] as in cases involving nonpublic parties."
The record indicates appellant is represented by an attorney. The agency
shall, therefore, award reasonable attorney's fees for all of appellant's
efforts in the pursuit of this claim.
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue the appellant a check for the interest
accrued on the sum of $40,000 from February 23, 1998, to the date of
payment. Interest shall be computed in accordance with the guidance
contained in 5 C.F.R. �550.806(d) and (e) (1996)
2. Within thirty (30) calendar days of the date this decision becomes
final, the appellant shall submit to the agency (not to the Commission)
a verified statement in support of attorney's fees for pressing her claim,
including attorney's fees incurred for this appeal. Within twenty (20)
calendar days of the date of receipt of the verified statement, the
agency shall issue to the appellant a determination on the amount of
attorney's fees along with a check for the sum the agency determines
as being appropriate in accordance with 29 C.F.R. �1614.501(e).
The agency's determination shall include a notice of right to appeal
the determination to the Commission; specific reasons for determining
the amount of the award; and a notice that the appellant may cash the
check for the awarded sum of attorney's fees without prejudice to her
right to appeal the award to the Commission.
3. The agency shall submit copies of checks for interest on the
compensatory damages and attorney's fees, and the agency's determination
on attorney's fees, to the Compliance Officer as referenced below.
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. �1614.503 (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. �� 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. �� 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. �2000e-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. �1614.410.
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 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. 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
June 15, 1999
________________________ _______________________
DATE Carlton Haddon, Acting Director
Office of Federal Operations