0120170198
03-23-2017
Mozella M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mozella M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120170198
Agency No. 4F920000714
DECISION
Complainant filed a timely appeal with this Commission from a Letter of Determination (Letter) by the Agency dated November 8, 2016, 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 a City Carrier at the Agency's Banning Post Office facility in Banning, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 26, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1a) $500.00 (five hundred dollars) will be made payable to Complainant, and represents non-wage compensatory damages. [The Agency] will not withhold from this amount, although it is understood between the parties that this payment will be reported to the Internal Revenue Service. The Postal Service makes no representation regarding whether this payment is subject to tax.
(2a) The [Agency] will remove Route 14 from the current T6 position rotation for a period of two (2) years from the date of this Settlement Agreement.
(10) This Agreement constitutes the full arid complete agreement between the Parties and fully supersedes any and all prior representations, promises, agreements, or understandings by or between the Parties pertaining to the subject matter hereof. No modifications to this Agreement are binding unless made in writing and signed by both Parties.
By letter to the Agency dated September 29, 2016, 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 include verbal agreements, made between the parties at the time the Agreement was signed, with the rest of the written agreement. Complainant further alleged that during the settlement negotiations the Agency attorney left the room to type up the settlement agreement and that when the attorney returned she handed Complainant the first page of the agreement entitled "Mutual Promises" and told Complainant that the other pages would be added when they were finished being typed. Complainant alleges that the agency attorney verbally confirmed that [GE, a specific Agency employee] would not work on Complainant's Route 14 nor work as a 2048 supervisor over Complainant. Based on these assurances, Complainant contends, she and her representative signed the agreement without reading the rest of it. Complainant maintains the agency attorney then attached additional pages that neither Complainant nor her representative had seen nor read to the rest of the document. Complainant maintains that on September 28, 2016, GE, worked in a supervisory position over Complainant in breach of the agreement. In addition, Complainant says, she and her representative also noticed that the other pages that the agency attorney added to the Mutual Promises did not have an admission by [MF, another Agency employee] stating Complainant had told him on January 28, 2013, that she had injured her back. Complainant states that without such an admission in writing that MF knew Complainant had injured her back on January 28, 2013, she is being prevented from being able to file a delayed OWCP claim for her back injury, again, breaching the agreement.
In its November 8, 2016 FAD, the Agency concluded it had not breached the Agreement.
ANALYSIS
We note initially that Complainant has submitted numerous items of correspondence in support of her appeal. EEOC Regulation 29 C.F.R. � 1614.403(d) states that any statement or brief on behalf of a complainant in support of an appeal must be submitted within 30 days of the notice of filing the appeal. Complainant's appeal was filed on October 12, 2016. Accordingly we decline to accept any of Complainant's numerous supplemental briefs received after November 11, 2016.
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 (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. Dep't 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 O v. U.S. Postal Serv., 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).
In the instant case the Agency denies any breach of the Agreement. In its Letter, the Agency found that the Agency attorney made the following statements:
In attempting to encourage the parties to settle, the administrative judge first allowed Complainant to discuss what she believed had occurred, a very brief outline of her claim going to hearing. As part of that discussion, Complainant was insistent that she had told [MF] about an injury that had occurred. However, that discussion where Complainant said she told [MF] about her injury was part of the background facts of the case, and was not part of any settlement demand or settlement terms. After discussing the Complainant's basic position, the administrative judge then turned to what Complainant was seeking as settlement for this matter, to determine whether settlement was possible. Complainant and her representative made numerous requests during the subsequent settlement discussions, including but not limited to asking that her current acting supervisor (2048) no longer supervise her, and that her T6 (carrier technician, a full-time city delivery carrier used to replace scheduled absences within a group of routes) no longer be assigned to her route when she could not deliver it.
After leaving to discuss the requests privately with management, I returned and explained to Complainant and her representative with the judge present that management was not able to remove Complainant's current 2048 acting supervisor from supervising the Complainant. I explained that the 2048 acting supervisor at issue was not present to answer any allegations against her (she was not a hearing witness), and that she had a right as an employee to be able to perform her job as a supervisor. I further stated, however, that management would agree to remove Complainant's route (Route 14) from the current T6 rotation for a two-year time period. Complainant and her representative agreed. We also discussed and agreed upon other terms, such as money and that a stand up talk be given.
All terms agreed upon are reflected in the Settlement Agreement. There was no "verbal agreement," as Complainant claims. The Settlement Agreement contains all the terms discussed and agreed upon by the parties. I gave only one version of the Settlement Agreement to Complainant and her representative to review and sign - the eight-page, complete version attached hereto which Complainant and her representative reviewed and signed on the final page in the presence of the administrative judge. I never gave a partial, incomplete, or any other version to Complainant or her representative to review or sign. Once Complainant and her representative signed, management and I also signed. I then made copies of the signed Settlement Agreement and gave a copy to all parties. I never acted deceptively, fraudulently or improperly in any way. I am offended by and strongly deny Complainant's allegations otherwise.
Letter, pp. 2-3.
Following a review of the record we discern no breach of the Agreement. As noted above, the Commission has 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. The Agreement does not state that GE would not work in a supervisory position over Complainant and hence the Agency did not breach the Agreement when, on September 28, 2016, GE supervised Complainant. Furthermore, the Agency did not breach the Agreement by failing to include assurances that MF would provide an admission in writing that he knew Complainant had injured her back on January 28, 2013. If Complainant wanted such assurances in the Agreement she should not have signed it until she actually read such language in the Agreement. Absent such explicit language in the Agreement we are unable to find a breach by the Agency despite Complainant's allegation about verbal agreements made at the time.
CONCLUSION
The Letter of Determination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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. 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
March 23, 2017
__________________
Date
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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