Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

May 1, 2014

0120122041 (E.E.O.C. May. 1, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120122041

Agency No. 4C-430-0104-07

DECISION
Complainant filed a timely appeal with this Commission from the Agency’s March 9, 2012
determination finding that it was in compliance with the terms of the settlement agreement into
which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29
C.F.R. § 1614.405. For the following reasons, the Commission REVERSES the Agency's
determination.

BACKGROUND
The record indicates that on August 13, 2007, Complainant, a Casual employee at the Agency,
contacted an EEO Counselor alleging discrimination based on age (over 40) and race (Chinese)
when she was denied a career position at the Agency. On September 13, 2007, the parties
entered into a settlement agreement resolving the complaint. The settlement agreement
provided, in pertinent part, that:

[Complainant] has given [an identified Management Official] a written request to be
reinstated to a career position within the USPS. [The Management Official] has
accepted [Complainant's] request for reinstatement.

[The Management Official] will check to see if [Complainant] has a valid current exam
score. If [Complainant] does not have a current exam score, [the Management Official]
will schedule [Complainant] to take the current exam by the end of October 2007.

[Complainant] understands that she must pass the current exam. Once [Complainant]
passes the exam, [the Management Official] will process the request for reinstatement.
0120122041

2
By letter to the Agency dated October 14, 2009, Complainant alleged that the Agency was in
breach of the settlement agreement. Specifically, Complainant indicated that she was denied a
career position although she passed the postal exam under the terms of the settlement
agreement. The Agency determined that although Complainant took the exam on November
17, 2007, and was notified of her passing score on December 14, 2007, she did not allege a
breach of the settlement until October 14, 2009, which was beyond the 30-day time limit under
the settlement agreement.

Complainant appealed and, in EEOC Appeal No. 0120102404 (Jan. 12, 2012), the
Commission vacated the Agency’s determination that Complainant’s breach claim was
untimely. In addition, the Commission determined that there was insufficient evidence in the
record to show whether there were any career position vacancies since December 13, 2007, for
the purposes of Complainant’s reinstatement. As a result, the Commission remanded the
matter for a supplemental investigation. The Commission ordered the Agency to submit any
statements from Agency officials indicating whether there were any career position vacancies
since December 13, 2007, and to issue a new letter of determination as to its compliance with
the terms of the settlement agreement.

The Agency conducted a supplemental investigation and issued a new letter of determination on
March 9, 2012. In their determination, the Agency found that the Human Resources Manager
of the Cincinnati District affirmed that there have been no new clerk or mail handler career
vacancies since December 13, 2007. The manager further stated that three employees have
been added to the rolls since then; however, one was a transfer employee and two received job
offers prior to December 13, 2007. Accordingly, the Agency concluded that it had not
breached the settlement agreement.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency still has not complied with the settlement
agreement. Specifically, Complainant argues that the Agency purposefully omitted from its
determination career positions that were vacant, but not filled and every non-clerk or non-mail
handler career position. Complainant alleges that the Agency only provided information that
would support its erroneous conclusion and misrepresented to the Commission that it had no
vacancies immediately following her passing of the required test in December 2007.
Complainant submitted a list that she claims shows that the Agency had numerous vacancies it
had authority to fill. Accordingly, Complainant requests that the Commission find that the
Agency breached the settlement agreement.

In response, the Agency reiterates that it has shown that there were no new career positions
available to Complainant after December 13, 2007. The Agency argues that the list of
vacancies Complainant submitted included internal postings which were available only to
current employees. Accordingly, the Agency requests that the Commission find that it has
complied with the settlement agreement.

0120122041

3

ANALYSIS
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. Dep’t of Def., EEOC Request No. 05960032 (Dec. 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. Dep’t of Veterans Affairs, EEOC Request No. 05900795 (Aug. 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 O v. U.S. Postal Serv., EEOC
Request No. 05910787 (Dec. 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).
The settlement agreement presently at issue provided that the Agency would process
Complainant’s request for reassignment upon proof of her having a valid, passing postal exam
score. A fair reading of the record reveals that the parties clearly contemplated that
Complainant would then be placed into an available career position. Neither party argued
against that interpretation in the Commission’s prior decision or in the instant case. Based on
that interpretation, in the previous decision, the Commission ordered the Agency to produce
evidence showing “whether there were any career position vacancies since December 13,
2007, for the purpose of Complainant's reinstatement under the September 13, 2007 settlement
agreement.” The Agency only produced evidence that it claimed showed that there were no
new employees hired for mail handler or clerk positions since December 13, 2007, ignoring
the Commission’s order to show whether there were any career position vacancies.
Complainant presented evidence showing that there were in fact numerous vacancies during
that timeframe. Thus, the Commission finds that Complainant has presented sufficient
evidence establishing that the Agency breached the settlement agreement. Further, the
Commission is not persuaded by the Agency’s argument that Complainant was not eligible for
the identified positions given that the Agency failed to produce any evidence supporting that
claim. Accordingly, the Commission finds that the Agency breached the settlement agreement.

Upon a finding that an agency has breached a settlement agreement, a complainant has the
choice of specifically implementing its terms or reinstating the complaint from the point where
processing ceased. 29 C.F.R. § 1614.504(a). Given the circumstances of this case, the
Commission determines that specific performance is the appropriate remedy. In this case, the
Commission finds that specific performance means that Complainant is entitled to be
retroactively placed in one of the identified vacant positions along with back pay and all other
benefits she would have earned.

0120122041

4

CONCLUSION
The Agency's determination finding no breach of the September 13, 2007 settlement agreement
is REVERSED and the Commission REMANDS this matter to the Agency for further
processing in accordance with the ORDER below.

ORDER
The Agency is ordered to take the following remedial actions:

1. Within thirty (30) calendar days of the date this decision becomes final, the Agency
shall specifically perform the terms of the September 13, 2007 settlement agreement by
processing Complainant’s request for reinstatement and retroactively placing her into a
vacant career position within the Agency.

2. The Agency shall determine the appropriate amount of back pay, with interest, and
other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501 no later than 60
calendar days after the date this decision becomes final. Complainant shall cooperate in
the Agency's efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the Agency. If there is a dispute
regarding the exact amount of back pay and/or benefits, the Agency shall issue a check
to the Complainant for the undisputed amount within 60 calendar days of the date the
Agency determines the amount it believes to be due. Complainant may petition for
enforcement or clarification of the amount in dispute. The petition for clarification or
enforcement must be filed with the Compliance Officer, at the address referenced in the
statement entitled “Implementation of the Commission's Decision.”

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
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 77960, Washington, DC
20013. 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
0120122041

5
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.
ATTORNEY'S FEES

(H0610)
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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 77960, Washington, DC 20013. 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
0120122041

6
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

(R0610)
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
May 1, 2014