01990355
12-17-1999
Sherry Hilliard-Harold, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sherry Hilliard-Harold, )
Complainant, )
)
v. )
) Appeal No. 01990355
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 8, 1998, denying
her allegation of a breach of settlement.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); EEOC Order
No. 960, as amended.
The record reflects that on May 4, 1998 complainant contacted the EEO
office alleging that the agency had breached a settlement agreement
entered into on April 8, 1992. The copy of the Agreement provided by
complainant stated, in pertinent part, that:
... the parties agree that for the next two years, beginning the date
this settlement is signed, [complainant] will be considered for all
Management Information Systems details for which she is qualified that
become available during this two-year period.
As part of this settlement the agency agrees to provide [complainant]
with a written notification each time a detail comes open and her
application is reviewed.
Complainant contended that the agency never honored the agreement, that
she had been �denied all opportunity for a detail�, and requested that
her complaint be reinstated.
In its September 8, 1998 FAD, the agency concluded that there was no
evidence that the settlement agreement was ever signed by an agency
official. Specifically, the agency indicated that although it requested
the agency EEO case number from complainant, she failed to provide it.
Moreover, after numerous efforts, the agency was unable to locate the
seven year old file. The copy of the agreement provided by complainant
was not signed by an agency official. Moreover, the FAD also noted that
the April 8, 1992 agreement required the agency to take action �for the
next two years�, yet complainant did not allege breach until May 4, 1998.
The Commission's regulations provide that, to be valid and enforceable,
a settlement agreement must be reduced to writing and signed by both
parties. See 64 Fed. Reg. 37,644, 37,661 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.603); Berry
v. U.S. Postal Service, EEOC Appeal No. 01951170 (November 7, 1995);
Rohar v. NASA, EEOC Appeal No. 01942193 (March 8, 1995). Given that the
record contains no written agreement signed by both parties, there is
no basis for the Commission to find that a valid, enforceable settlement
agreement exists. But see Acree v. Department of the Navy, EEOC Request
No. 05900784 (October 4, 1990) (settlement agreement found where terms
were negotiated on the record during an EEOC administrative hearing,
and later reduced to writing in the form of a hearing transcript);
Newman v. Department of the Navy, EEOC Request No. 05930458 (July 1,
1993) (no settlement agreement found absent evidence equivalent to a
hearing transcript with which to bind the parties).
Because of our disposition we do not consider whether complainant failed
to timely notify the agency of the alleged breach.
Accordingly, the agency's decision finding no breach of the settlement
agreement was proper and is AFFIRMED.
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 (S1199)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
Dec. 17, 1999
____________________________
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:
____________________ __________________________
Date Equal Employment Assistant
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.