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

Equal Employment Opportunity Commission

Jun 27, 2013

0120121918 (E.E.O.C. Jun. 27, 2013)

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
(Southwest Area),
Agency.

Appeal No. 0120121918

Agency No. 1G-871-0021-10

DECISION

Complainant filed an appeal with this Commission from the Agency’s March 20, 2012 letter of
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Window Clerk at
the Agency’s Processing and Distribution Center in Albuquerque, New Mexico. Believing that
the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO
Counselor to initiate the EEO complaint process. On December 10, 2002, Complainant and
the Agency purportedly entered into a settlement agreement to resolve the matter. The record
contains a settlement agreement stating, in pertinent part, that:

(1) Complainant will be credited with 200 hours of annual leave and 50 hours of
sick leave for the time period of year 2000 and 2002. The Agency expressly
agrees that these hours shall be credited to [Complainant] and not subject to any
buy-back requirement.

(2) The Agency agrees not to move Complainant to either the plant or the ASF for a
period of ten years from the signing of this agreement. This is contingent upon
the approval of the American Postal Workers Union (APWU).

On February 16, 2010, Complainant contacted an EEO counselor alleging that the Agency was
in breach of the settlement agreement, and requested that the Agency specifically implement its
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terms. Specifically, Complainant alleged that on January 25, 2010, she was given a direct
order (with the threat of discipline) to report on Tour 1 at the Plant operations in breach of
provision (2). Complainant participated in EEO counseling and, after several Agency clerical
errors, filed a formal complaint regarding the matter on April 11, 2011. The Agency
processed the claim as a formal complaint (Agency No. 1G-871-0004-10) and dismissed the
complaint on the grounds that it alleged dissatisfaction with the processing of a previous
complaint. The Agency noted, however, that it would process Complainant’s settlement
breach allegation separately. Complainant appealed and, in v. U.S. Postal Serv.,
EEOC Appeal No. 0120113442 (Oct. 21, 2011), the Commission affirmed the dismissal. The
Commission, however, remanded the breach claim (Agency No. 1G-871-0021-10) back to the
Agency to ensure that it was properly processed.

On March 20, 2012, the Agency issued a letter of determination finding that it had not
breached the settlement agreement. The Agency determined that while Complainant was
issued the assignment order, she never actually reported to Tour 1 and was not disciplined.
Further, the Agency found that although Complainant worked in the same building as the
Processing and Distribution Center, she was assigned to the passport section working for the
Customer Services Operations Manager. As a result, the Agency concluded that it was in
compliance with the settlement agreement. Complainant filed the instant appeal without
submitting any contentions or arguments in support.

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 Commission determines that the record contains insufficient evidence to
determine whether a breach has occurred. Specifically, the Agency’s letter of determination
finding no breach is predicated upon statements from the Plant Manager; however, the record
contains no affidavit or statement from the Plant Manager indicating that he purportedly
fulfilled the obligations under the terms of the settlement agreement. Given this lack of
evidence, the Commission is unable to ascertain whether the Agency complied with the
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settlement agreement. Accordingly, the Agency's finding of no breach of the settlement
agreement is REVERSED. This matter is REMANDED to the Agency for further processing
in accordance with the ORDER below.

ORDER

The Agency is ORDERED to take the following action within thirty (30) calendar days of the
date this decision becomes final:

(1) Supplement the record with evidence clearly showing it has complied with the
settlement agreement. The supplementation of the record shall include any
documentation, such as an affidavit from the Plant Manager and any other responsible
management officials.

(2) Within thirty (30) calendar days of the date this decision becomes final, the Agency
shall issue a new decision concerning whether it breached the December 10, 2002
settlement agreement.

A copy of the Agency's new decision must be sent to the Compliance Officer as referenced
herein.

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
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.

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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 (Nov. 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 (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.

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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

June 27, 2013
Date