Estelle H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 10, 2019

0120180096 (E.E.O.C. Apr. 10, 2019)

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

Estelle H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120180096

Agency No. 6E000000715

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated August 25, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Attorney at the
Agency’s Western Area Law Department in Seattle, Washington. Believing that the Agency
subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to
initiate the EEO complaint process. On June 24, 2015, Complainant and the Agency entered into
a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part,
that:

(1) This agreement is in full and complete settlement of all claims made in the above-
referenced complaint (hereinafter “Agreement”). It is further agreed that this
Agreement resolves any claims, complaints or appeals which [Complainant] has, or
could have, filed or initiated up to the date this Agreement is fully executed, in any
forum (including, but not limited to, EEOC, MSPB, and District Court), relating to her

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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employment with the [Agency.] It is further agreed that this Agreement is in full and
complete settlement of all outstanding discipline, complaints, lawsuits, administrative
complaints, grievances, and appeals filed or that could have been filed or brought by
the Agency or on Agency’s behalf as of the date of this Agreement concerning
[Complainant’s] past conduct or action which are already known or should have been
known by the Agency.

(2) In exchange for the terms in paragraph 1 above, the parties further agree as follows…

f. The [Agency] agrees that the six (6) page “Ratings Recourse Response” prepared
by [Complainant’s supervisor] regarding [Complainant’s] FY 2013 Pay for
Performance will not be cited in any future performance review of [Complainant].

(3) It is agreed that by entering into this Agreement the [Agency] and [Complainant] do
not admit to any wrongdoing or liability and that this Agreement is nonprecedential
and may not be cited by any third party for any reason, including comparison in any
forum.

By letter to the Agency dated July 20, 2017, Complainant alleged that the Agency was in breach
of the settlement agreement and requested that the Agency specifically implement its terms.
Specifically, Complainant alleged that the Agency failed to negotiate in good faith when forming
the settlement agreement. Complainant claimed that the Agency persuaded her to withdraw her
EEO complaint in exchange for the Agency’s agreement to not cite the “Ratings Recourse
Response” prepared by Complainant’s supervisor in any future performance review when the
Agency knew that the FY 2013 rating would be used for future pay adjustments. Complainant
further contended that the Agency breached the confidentiality provisions of the settlement
agreement by failing to safeguard access to the fully executed document posted on the Agency’s
iComplaints system.

In its August 25, 2017 FAD, the Agency concluded that Complainant’s bad faith and breach claims
were untimely raised based on statements Complainant made in her affidavit. Specifically,
Complainant affirmed that she learned that management negotiated in bad faith regarding the
agreement to not cite the FY 2013 ratings response in September 2016. As for Complainant’s
breach of confidentiality allegation, Complainant affirmed that she informed management of the
breach in February 2017. However, Complainant’s attorney did not notify the Agency of the
settlement agreement breach until July 20, 2017.

In the FAD, the Agency found that assuming, arguendo, that Complainant timely notified the
Agency of the settlement agreement breach, Complainant failed to allege that a specific term of
the settlement agreement was breached. Moreover, regarding the bad faith negotiation claim, the
Agency determined that there was no evidence of an intent to prevent Complainant from receiving
future pay raises, as the discussions about raises had been ongoing and nothing had been finalized
or approved at the time the settlement agreement was negotiated.
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Finally, the Agency determined that Complainant failed to provide evidence to support a finding
that the Agency violated the confidentiality of the settlement agreement, but properly raised the
possible violation as a new claim.

CONTENTIONS ON APPEAL

On appeal, Complainant maintains that her settlement breach claims were timely raised.
Complainant contends that the Agency’s finding of no breach seeks to improperly bind
Complainant to a settlement agreement that was negotiated based on terms that were later
discovered to be obsolete at the time of signing or shortly thereafter, resulting in an extreme
adverse outcome and violating equal pay laws. Complainant claims that the Agency omitted
material facts and failed to address and/or respond to key issues and allegations. According to
Complainant, the settlement agreement should be voided based on (1) the proximity of the date of
the agreement to the change in weight of the FY13 Pay for Performance ratings; (2) the Agency’s
use of Complainant’s FY13 Pay for Performance ratings; (3) the Agency’s omission of any
reference to Complainant’s allegations regarding a second salary adjustment; and (4) the failure of
the Agency to safeguard Complainant’s iComplaints. Complainant further argues that the Agency
refused to provide the necessary iComplaint report, which was in their sole custody and would
reflect evidence of the alleged confidentiality breach. Finally, Complainant contends that if the
Agency did not negotiate in bad faith, the settlement agreement should be voidable due to mutual
mistake.

In response to Complainant’s assertions on appeal, the Agency argues that Complainant’s bad faith
negotiation claim was untimely based on when Complainant stated that she discovered that the
agreement was negotiated in bad faith. The Agency adds that it did not ignore Complainant’s July
23, 2017 discovery of a second pay adjustment, as suggested by Complainant, but viewed it as
Complainant reaffirming her belief that the settlement agreement was negotiated in bad faith.
Ultimately, the Agency argues that Complainant believed in August or September 2016 that the
agreement was negotiated in bad faith. While Complainant filed a new complaint in October 2016,
the Agency notes that Complainant’s complaint made no mention of a settlement agreement breach
or bad faith negotiation. With respect to the second pay adjustments, the Agency contends that
while the claim could be considered timely, the settlement agreement was not breached.
Specifically, the rating numbers for fiscal years 2011 through 2014 were used in the calculations
and the six-page “Ratings Recourse Response” was not used or part of the pay adjustment
calculations. As for Complainant’s violation of confidentiality contentions, the Agency contends
that Complainant did not present the claim to the EEO Director as a breach of the settlement
agreement and the claim was already being investigated as a new claim.

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.
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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. Bldg. Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984).

Timeliness

EEOC Regulation 29 C.F.R. § 1614.504(a) further provides that if a complainant believes that an
agency failed to comply with the terms of a settlement agreement, a complainant shall notify the
EEO Director, in writing, of alleged noncompliance within 30 days of the date of when a
complainant knew or should have known of the alleged noncompliance.

In the instant case, we agree that Complainant’s allegations of bad faith negotiation and breach of
the settlement agreement were untimely raised. Specifically, the record reveals that Complainant
asserted that she first learned that the Agency negotiated in bad faith in September 2016.
Complainant’s Aff., at 3. Complainant affirmed that she learned of confidentiality issues between
January and February 2017. Id. at 2. Complainant raised both allegations over five months later
in July 2017. Accordingly, we find that Complainant failed to notify the EEO Director of
noncompliance within the requisite period.

Bad Faith Negotiation

Notwithstanding our finding that Complainant’s allegations were untimely, we find that the
settlement agreement is valid and there is no evidence that the Agency entered into the agreement
with bad faith. Moreover, Complainant had an attorney representative during negotiations and
Complainant has not shown that she did not have sufficient information to make a fair bargain
when negotiating the settlement agreement. While the Agency had considered pay adjustments at
the time the settlement agreement was signed in June 2015, there was no decision or finalization
of the pay adjustment parameters. Deputy Managing Counsel Aff., at 3-4. Moreover, management
officials affirmed that clause 2(f) of the settlement agreement did not change the Pay for
Performance rating that Complainant received for the year, which was used for calculating the pay
adjustments. Id. at 3.

On appeal, Complainant argues that there was no need to address a change in the actual FY 2013
rating number because the rating number occurred during a pay freeze year and had no impact on
salary adjustments. We find this argument unpersuasive, as Complainant asserted that she
challenged her rating for FY13 because she felt it was “inaccurate, filled with misstatements, and
simply wrong.” Complainant’s Aff., at 1.
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The agreement at issue does not specify any provisions that might provide for non-consideration
or expungement of the rating number itself, and specifically states that the “Ratings Recourse
Response” would not be cited. If Complainant expected that the rating number itself not be
considered, such expectation should have been explicitly provided in the settlement agreement.
Finally, despite Complainant’s claim that the settlement agreement should be voided based on
mutual mistake, there is no evidence in the record of anything other than, at most, a unilateral
mistake on Complainant’s part.

Confidentiality

Regarding confidentiality of the agreement, other than Complainant’s bald assertions, the record
includes no evidence that the Agency failed to safeguard access to the iComplaints system.
Complainant asserted that a coworker informed her that multiple individuals accessed her
iComplaints file subsequent to the finalization of the settlement agreement. However, we find
insufficient record evidence establishing that the Agency officials improperly discussed the terms
of the agreement with individuals who did not have a need to know or failed to safeguard the
system. As such, we conclude that Complainant failed to show that the Agency breached the
settlement agreement.

CONCLUSION

The Agency’s finding of no breach of the June 24, 2015 settlement agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director,
Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s
request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by
certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request
must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 10, 2019
Date