01A04412_r
10-08-2002
William A. Cisco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William A. Cisco v. U.S. Postal Service
01A04412
.October 8, 2002
William A. Cisco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04412
DECISION
Complainant filed a timely appeal with this Commission from an April 17,
2000 agency final decision concerning its compliance with the January
18, 2000 settlement agreement executed by the parties. The Commission
accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) [Named agency official] agrees to allow [complainant] to return to
work starting February 9, 2000.
(2) Take letter of [complainant's] termination from [illegible] will
be destroyed.
(3) Remove and destroy all medical records from [illegible] pertaining to
[complainant's] pre-hire medical condition, if and when the pending EEO
claim is resolved.
(4) The Postal Service agrees that [complainant] did not falsely answer
any questions when he completed the pre-hire medical questionnaire on
June 1, 1998....
[Complainant's attorney] will submit [illegible] of attorney fees by
January 24, 2000. [named agency official] will review fees and attempt
to resolve the matter by February 14, 2000.
Back pay will be given to [complainant] from [illegible] November 1999
to January 30, 2000.
[Named agency official] agrees to provide [complainant] a list of
[illegible] office positions. [Named agency official and complainant]
agree to a [illegible] meeting to discuss the possibility of being
placed in another job.
By letter to the agency dated March 28, 2000, complainant claimed that
the agency breached the settlement agreement, and requested specific
enforcement of its provisions. The agency responded in an April 17,
2000 final decision, in which it notified complainant that he could
either request that his complaint be reinstated for processing, or
that he could file an appeal of the breach claim with the Commission.
The decision also made reference to an enclosure which consisted of a
written response to the breach claim by the agency official named in
the settlement agreement (herein after referred to as NAO).
Review of the NAO's response, in pertinent part, reflects his statement
that the back pay claim in provision 6 had been submitted to payroll,
as documented by attached copies of the claim. Regarding provision 3,
the NAO indicates that the medical records were not removed because he
interpreted the agreement to require their destruction only if ordered in
a future EEO proceeding. With respect to provision 5, the NAO indicates
that he disclosed his lack of authority to agree to the payment of
attorney's fees during the mediation, and that he otherwise complied with
this provision by reviewing the fee petition and passing it on to the
�EEO Counselor Investigator,� who would in turn forward it to the proper
officials for review. Regarding provision 7, the NAO noted that no list
and no meeting were provided because no career positions were vacant and
available for complainant, and that none were anticipated. The NAO also
indicated that he informed complainant of these circumstances in writing.
In correspondence dated April 26, 2000, complainant, through his attorney,
disputed the amount of back pay received by complainant under provision 6.
In particular, complainant challenged the agency's offset of $3,035.00
for unemployment compensation as well the number of hours credited for
the back pay period. Complainant additionally avers that the back pay
award should include the agency's payment of his health insurance premiums
for the back pay period. Regarding provision 3, complainant argues that
the SA requires that these medical records be destroyed, and requests
verification of their destruction. Additionally, regarding provision 7,
complainant avers that it appears that certain employees appear to have
received transfers since execution of the settlement agreement, and asks
the agency to provide information regarding the nature of the �hiring
freeze� to ascertain its affect on the implementation of provision 7.
Also, in the event that a �hiring freeze� precludes a current transfer
for complainant, complainant requests assistance in obtaining a future
transfer. Finally, regarding provision 5, complainant's attorney argues
that as the agency's representative, the NAO presumably had authority
to bind the agency to pay reasonable attorney's fees, even if he could
not authorize a specific amount. Complainant's attorney avers that
she gave the NAO an estimate of the fees, and that he promised that the
petition would be processed by the proper agency official, but that she
has recently been informed that the NAO had failed to do so.
On appeal, complainant continues to dispute the calculation of his back
pay award, noting that the agency has since restored his health insurance
premiums, but has failed to reinstate his life insurance benefits.
Complainant also avers that the agency failed to pay any attorney's
fees, and that the NAO did not submit the fee petition as contemplated
by provision 5. Finally, complainant again asserts breach of provisions
3 and 7, as set forth in the April 26, 2000 correspondence.
In this case, we find that the agency's final decision can be construed
as an admission of breach, notwithstanding the NAO's enclosed response,
because the agency offers to reinstate complainant's underlying complaint.
Furthermore, we find that the appeal rights issued in this case go to
the agency's decision to remedy the breach by reinstating the underlying
complaint, as opposed to undertaking specific performance of the breached
provisions.
Under the Commission's regulations, in the event of a finding of
non-compliance, the Commission may, in its discretion, remedy the breach
by either ordering the agency to reinstate the underlying complaint for
processing, or alternatively, to undertake specific performance of the
breach provision(s). See 29 C.F.R. � 1614.504(c). In this case, we find
that because the agency complied with provisions 1, 2, and 4, and because
complainant clearly wishes specific enforcement of provisions 3, 5, 6, and
7, as well as our policy favoring settlement of complaints, we conclude
that the appropriate remedy in this case is specific enforcement of the
breached provisions. However, notwithstanding the agency's admission
of breach, in order to ascertain what actions the agency must undertake
to fully effect compliance, we will herein analyze each of complainant's
breach claims.
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.
The Commission has held that a settlement agreement 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 further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Provision 3
Based on its plain meaning, we find that this provision obligates
the agency to remove and destroy the medical records at issue �if and
when� the �current� EEO complaint is resolved. We find no evidence to
support the NAO's interpretation that this obligation would only arise
if mandated in the adjudication of a future EEO complaint. Accordingly,
because the instant settlement agreement resolves the �current� EEO
complaint, and because the agency admits that it did not remove and
destroy these records, we find that the agency breached provision 3.
Therefore, in order to specifically enforce this provision, as more
fully set forth in the ORDER below, we instruct the agency to remove
and destroy the medical records at issue, and to provide complainant
and the Commission with verification of this action.
Provision 5
The NAO claims that during the mediation of the settlement agreement,
he disclosed his lack of authority to commit the agency to the payment of
attorney's fees, and only agreed to present the attorney's fee petition
to an agency official who could make that determination. Conversely,
complainant, through his attorney, indicates that the NAO did appear to
have the authority to obligate the agency to pay reasonable attorney's
fees, and that this authority was only limited with regard to specifying
the amount of the fee.
In considering these statements, we note that the NAO represented the
agency during the mediation with the apparent authority to obligate the
agency under all of the terms of the settlement agreement, to include
the significant financial obligations to reinstate complainant and award
him back pay. Further, we note that provision 6, regarding the back
pay award, like the instant provision, does not specify a certain sum.
Therefore, we find that complainant and his attorney reasonably understood
the NAO to mean that this authority was limited only regarding the exact
amount of attorney fees to be paid by the agency. Moreover, we find
that the language of provision 5, in requiring complainant's attorney to
submit a fee petition by a certain date, may reasonably be interpreted
as reflecting an intention that the agency would pay attorney's fees,
but that the amount would be determined after review of the petition.
In this regard, we note that the record reflects that complainant's
attorney submitted the petition to the NAO by the due date indicated,
but that the agency failed to respond in any manner.
Accordingly, we find that the agency breached provision 5, and, as more
fully set forth in the ORDER below, we instruct the agency to undertake
specific enforcement by reviewing the attorney's fee petition submitted
by complainant's attorney and making payment to complainant's attorney
for reasonable attorney's fees and costs.
Provision 6
As of the time of the appeal, complainant's dispute concerning his
back pay award concerns the number of hours the agency estimated as
hours complainant would have worked during the back pay period. We have
carefully reviewed the record. Although the agency submits documentation
regarding its back pay calculation, we can find no clear explanation
regarding the number of estimated hours. According to complainant, based
on a assessment by the union, the estimated number of hours should be far
greater than that used by the agency in calculating the back pay award.
Therefore, because the agency fails to provide evidence explaining its
estimate, we cannot verify the accuracy of its back pay award, and we
find that it failed to comply with provision 6. Moreover, we concur with
complainant that the agency improperly deducted the amount complainant
received as unemployment compensation, and failed to comply with provision
6 for this reason as well. See Scott v. U.S. Postal Service, EEOC Appeal
No. 01921641 (June 11, 1993). Additionally, because as part of the back
pay award the agency restored complainant's health care insurance and
Thrift Savings Plan benefits, we find that the parties intended that
employment benefits of this nature be restored as part of complainant's
back pay award. Therefore, we find that the agency breached provision 6
when it failed to restore complainant's life insurance benefits as part
of the back pay award.
Accordingly, we conclude that the agency breached provision 6, and,
as more fully set forth in the ORDER below, we instruct the agency to
specifically enforce this provision by providing complainant and the
Commission with a detailed explanation regarding the estimated number of
hours the back pay award is based on, to include any difference in the
hourly rate for any of these hours, and to reconcile any differences
between its estimate and hourly rates and that produced by the union.
Should this review and reconciliation yield a higher back pay award,
the agency is instructed to pay complainant this additional amount.
Also, we instruct the agency to pay the $3,035.00 improperly deducted
as an off-set for unemployment compensation, and to restore complainant's
life insurance benefits.
Provision 7
In his response, the NAO, in essence, claims impossibility of performance
of this provision due to a hiring freeze. However, we find that the NAO,
as an agency official with the agency's personnel staff, would likely
be aware of a current or impending �hiring freeze,� potentially raising
the possibility that the NAO negotiated this provision in bad faith.
Moreover, the record is devoid of any evidence regarding the on-set, or
existence, of this �hiring freeze,� or whether it includes transfers.
Nonetheless, we find that a �hiring freeze� does not affect the agency's
obligation to assist complainant in transferring to another position.
More specifically, we find that this provision obligates the NAO to
identify suitable vacant positions for complainant's possible transfer,
and to assist complainant in transferring to these positions, as well
as positions which may occur in the near future. To the extent that a
�hiring freeze� would restrict such a transfer, we find that the terms
of provision 7 would also obligate the agency to waive these restrictions
in order to implement the transfer.
Accordingly, we conclude that the agency breached provision 7, and we
instruct the agency to specifically enforce this provision, as more
fully set forth in the ORDER below.
In conclusion, for the reasons set forth above, we find that the agency
breached provisions 3, 5, 6 and 7 of the settlement agreement, and
we REVERSE the agency's decision to remedy the breach by reinstating
the underlying EEO complaint. We REMAND the case back to the agency
to specifically enforce provisions 3, 5, 6, and 7 as set forth in the
ORDER below.
ORDER
Within ten (10) calendar days from the date this decision becomes final,
the agency shall remove and destroy complainant's pre-hire medical records
obtained from the �Kaiser�medical provider, and to provide complainant
with written verification of this action.
Within thirty (30) calendar days from the date this decision
becomes final, the agency shall review the fee petition submitted by
complainant's attorney and make payment to complainant's attorney for
all reasonable attorney's fees and costs.
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall:
Provide complainant with a detailed explanation regarding the
estimated number of hours the back pay award is based on, to include any
variations in the hourly rates for any of these hours, and to reconcile
any differences between its estimate and hourly rates, and that computed
by the union.
Should this review and reconciliation yield a higher back pay award,
the agency is instructed to pay complainant this additional amount.
We further instruct the agency to pay complainant the $3,035.00 it
improperly deducted as an off-set for unemployment compensation, and
to retroactively restore complainant's life insurance benefits, to the
extent it has not already done so.
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall provide complainant with a list of vacant
office positions, suitable for his transfer, and to facilitate his
transfer, as appropriate, to any suitable transfer(s) he may desire,
notwithstanding the existence of a �hiring freeze.� The agency is
instructed to continue to assist complainant in obtaining a transfer
to a suitable office position, primarily by informing him of vacancies
at the time they occur, until he successfully receives such a transfer,
or for at least one year after the date of the issuance of this decision.
Copies of all pertinent documentation verifying implementation of
the above ORDER provisions must be sent to the Compliance Officer as
referenced below.
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/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
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
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 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)
(1994 & Supp. IV 1999). If the 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 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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (R0900)
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:
_____________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 8, 2002
_____________________________
Date