Clement M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

2019001971 (E.E.O.C. Sep. 26, 2019)

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

Clement M.,1
Complainant,

v.

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

Appeal No. 2019001971

Agency No. 4F920009518

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated October 23, 2018, 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 Letter Carrier at the
Agency’s Riverfront Post Office facility in San Diego, California.

On June 20, 2018, Complainant and the Agency entered into a settlement agreement to resolve
an EEO matter. The settlement agreement provided, in pertinent part, that:

(1) The bathroom at the Riverfront Annex will be maintained in working
order, any issue with the bathroom will immediately be brought to
management.
(2) USPS will restore 80 hours of sick leave used beginning January 1, 2016.
(3) Management will make sure the handicap parking on the west side will not
be blocked.

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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(4) Management will treat Counselee with Dignity and Respect and will not
refer to Counselee’s Disability.
(5) The Postal Service agrees to give a Dignity and Respect talk to all
Riverfront annex employees by September 3.
(6) DRAC meeting will be scheduled as soon as possible and [a named
individual] agrees to be present.

In addition, the Agreement stated that it “constituted a full and final settlement of all issues
arising out of the subject matter of the following EEO complaint number(s) and by signing this
agreement, the counselee withdraws any and all pending EEO complaints and appeals relative to
the subject matter of these complaints.” The case number referenced on the Agreement was 4F-
920-0095-18. The Agreement also stated that “if there are related grievances (beyond Step 1)
which the parties would like to withdraw, an authorized union official must sign below.” The
Agreement was not signed by a union official and did not identify any grievances for withdrawal.

By letter to the Agency dated August 4, 2018, Complainant alleged that the Agency was in
breach of the Settlement Agreement. Specifically, Complainant alleged that the Agency failed to
restore 80 hours of sick leave, failed to keep the handicap parking spaces available, and failed to
hold the DRAC meeting. The record indicates that he notified the Agency of his breach claims
on August 4, 2018 and again, on August 16, 2018. Complainant also filed grievances on these
matters.

On August 31, 2018, he again contacted an EEO counselor to initiate pre-complaint counseling
for a new complaint, alleging retaliation. The record does not show that the Agency took any
action or issued him a notice of his right to file.

Thereafter, on October 23, 2018, the Agency issued its decision on the breach claims, finding
that there had been no breach. The Agency reasoned that the handicap parking spots were
available for Complainant to use every day, because a supervisor is supposed to check each day
at 5:30 a.m. The Agency decision acknowledged that the DRAC meeting had been postponed,
and not held. The Agency stated Complainant did not have the medical documentation that the
Labor Relations Manager had instructed Complainant to provide for the meeting to proceed. The
Agency also conceded that not all employees attended the stand-up talk that the Agency gave on
September 30, 2018.

This appeal followed. On appeal, Complainant enclosed copies of the routing slips, dated March
8, 2019 and March 23, 2019. Through the slips, Complainant notified the Agency that the
handicap parking spaces were still blocked and not available to him, along with his claim that the
Agency was intentionally not keeping the spaces available as an act of retaliation against him.
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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 (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 Agreement required certain specific actions by the Agency in exchange
for Complainant’s release of his complaint. The record does not show that the Agency actually
delivered on its promise to keep the “handicap” parking spaces available for his use, restored the
80 hours of sick leave, or ever held the DRAC meeting.

We find, therefore, that Complainant established that the Agency breached the Agreement.
Moreover, the record before us does not show that the Agency cured the breach.

Where this Commission finds that the settlement agreement has been breached, the only two
remedies usually available are specific performance of the terms of the agreement or
reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. §
1614.504 (c).

Inasmuch as Complainant did not clearly specify in his notice of breach which remedy was
preferred, we therefore give Complainant the option, in accordance with this decision and the
ORDER below, of either reinstating his underlying EEO complaint, or specifically enforcing the
terms of the Agreement.

To the extent that Complainant wishes to address new claims of discrimination regarding other
actions that occurred after the execution of the Agreement, he should initiate EEO counseling
with the Agency, as any subsequent claims must be addressed in a separate complaint.

For all of these reasons, we find that Complainant established that the Agency breached the June
20, 2018 Agreement.
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CONCLUSION

Accordingly, we REVERSE the Agency’s Breach Decision and REMAND the matter to the
Agency for actions in accordance with the ORDER below.

ORDER
The Agency is ordered to take the following actions:

1. Within thirty (30) calendar days of the date of this decision, the Agency is ordered to
notify Complainant of his option to either return to the status quo prior to the signing of
the settlement agreement or to obtain specific performance of the agreement. The Agency
shall also notify Complainant that he has fifteen (15) calendar days from the date of his
receipt of the Agency’s notice within which to notify the Agency either that he wishes to
return to the status quo prior to the signing of the agreement or that he wishes to allow the
terms of the agreement to stand. Complainant shall be notified that, in order to return to
the status quo ante, he must return any monetary benefits (if applicable) received
pursuant to the agreement. The Agency shall determine its obligations due to
Complainant, or return of consideration or benefits, if any, due from Complainant, within
thirty (30) calendar days of the date of this decision, and shall include such information in
the notice to Complainant.

2. If Complainant elects specific performance, the Agency shall notify Complainant that the
terms of the settlement agreement shall stand and the Agency will abide by all of the
terms of the Agreement.

3. In accordance with the terms of the Agreement and our finding that the Agency breached
the Agreement that required the “restoration of 80 hours of sick leave used beginning
January 1, 2016,” the Agency shall determine the appropriate amount of leave, with
interest, and other benefits due Complainant, pursuant to the terms of the Agreement and
29 C.F.R. § 1614.501, and the Agency shall pay that amount to Complainant no later
than sixty (60) calendar days after the date this decision was issued. If there is a dispute
regarding the exact amount of benefits, the Agency shall issue a check to Complainant
for the undisputed amount within sixty (60) calendar days of the date of this decision or
the date the Agency determines the amount it believes to be due, whichever is earlier.
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."

4. If Complainant elects to reinstate his EEO complaint, the processing of the EEO
complaint will resume from the point processing ceased. If any matters remained pending
with the Agency, the Agency is ordered to process the remanded claims in accordance
with 29 C.F.R. § 1614.108 et seq.
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5. The Agency shall acknowledge to Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of restored leave
and other benefits due Complainant, including evidence that the corrective action has been
implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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 the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

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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 tends 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. 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 (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.
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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 (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

September 26, 2019
Date