0120152147
10-29-2015
Alena C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alena C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120152147
Agency No. 4B-060-0086-12
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated April 29, 2015, finding that it was in compliance with the terms of a May 31, 2012 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On May 31, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter which was pursued through the EEO complaint process. The May 31, 2012 settlement agreement provided, in pertinent part, that:
[Male management official] and [female management official] agree to modify the counselee's notification of personnel action PS Form 50 to remove cause by June 10, 2012.
By letter to the Agency dated April 23, 2015, Complainant alleged breach of the instant settlement agreement. Specifically, Complainant alleged that a named male management official "never honored the terms of the redress...he clearly overlooks the evidence, logic, and the fact that he has full knowledge that [a named female management official] failed to do her job, and I have now been waiting for four years. I did take your suggestion, and did my best to maintain contact with [male management official]. I called his office at least six different times. His [named secretary] at the time, told me that if [management official] had not spoken to me by this point he would not be calling me at all."
Furthermore, Complainant requested assistance with obtaining a reinstatement because the union failed to provide her with adequate representation.
In its April 29, 2015 final decision, the Agency noted that Complainant's claim of breach was untimely raised. The Agency noted that Complainant waited approximately two years from the signing of the agreement to allege breach of the instant agreement. The Agency indicated her claim of breach on April 23, 2015 was well beyond the 30 days of when she should have been aware of a breach.
The Agency further found that assuming, arguendo, that Complainant's breach allegation was timely raised, Agency management complied with its terms. Specifically, the Agency stated that the Complainant's Notification of Personnel Action (SF-50) history shows the following actions related to her removal which was effective on December 13, 2011: the SF-50 processed on December 20, 2011 indicated that Complainant was separated due to failure to operate her motor vehicle; the remarks in SF-50 processed on June 26, 2012 indicated "the action reactivates the employee to change remarks per unit request and EEO settlement agreement;" and the remarks section in the SF-50 processed on June 27, 2012, was modified to remove references to Complainant's failure to operate her motor vehicle in a safe manner (emphasis in the original.
Further, the Agency determined that the SF-50 form Complainant provided was processed on December 20, 2011, simply to reactive her record in order to make the SF-50 change agreed to in the instant agreement which required changing the comments regarding the reason for removal (failure to operate motor vehicle in a safe manner). The Agency further stated that the SF-50 processed on June 27, 2012 was in full compliance with the terms of the settlement agreement. Moreover, the Agency determined that the settlement agreement did not require or make any reference to reinstatement.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 settlement agreement expressly provided, in the event of a perceived breach, that Complainant should notify the Manager, EEO Compliance and Appeals, in writing "within 30 days of the alleged breach." Complainant did not contact the Agency until April 23, 2015, well beyond the 30-day limitation period. Pursuant to 29 C.F.R. � 1614.504(a) and the plan meaning of the language in the settlement agreement, Complainant had thirty days to notify the Agency of the alleged breach. Complainant, on appeal, stated that she went through arbitration "with woefully inadequate representation, [management official] stated to me that the union failed me, and I have no doubt that [female management official] had her own personal agenda. I know this case has been doing on for quite some time, but I have also been strung along by those who had the power and authority to make things right, and never did." After a careful review of the record, we find that Complainant did not timely complain about the Agency's alleged noncompliance with the settlement agreement.
The Agency's finding that Complainant's breach claim of the May 31, 2012 settlement agreement was untimely raised is AFFIRMED.
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), at 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 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 (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 29, 2015
__________________
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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