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

Equal Employment Opportunity Commission

Apr 19, 2019

2019000935 (E.E.O.C. Apr. 19, 2019)

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

Fredrick T,1
Complainant,

v.

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

Appeal No. 2019000935

Agency No. 1F946002618

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a Letter of Determination ((Letter) by the Agency dated September 28,
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 in a position unspecified
in the record at the Agency’s Processing and Distribution Center facility in Oakland, California.

Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On March 14, 2018, Complainant
and the Agency entered into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:

(5) [Complainant] will give [a management official (“M”)] all of the dates
that he came to work for investigative interviews and [M] will verify with
applicable staff that the meetings occurred and if verified, he will be paid.

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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(6) [M] will investigate the feasibility of a detail or mirror bid that will place
[Complainant] at Willow Glen and advise him of the outcome ASAP. If
[Complainant] is required to return to the SJ Plant at any time within the
next 6 months [a supervisor (S)] will not be a 204b supervisor over him
and will not be assigned to work in [Complainant]’s area, and will not be
present in [Complainant]'s work area for any reason that is not business
related.

By letter to the Agency dated August 20, 2018, Complainant alleged that the Agency was in
breach of the settlement agreement, (Agreement) and requested that the Agency specifically
implement its terms. Specifically, Complainant alleged that the Agency failed to pay him for all
the time he came in for investigative interviews, and that no mirror bid assignment was requested
or discussed.

In its September 28, 2018 Letter the Agency concluded there was no breach of the Agreement.
Specifically, the Letter found that M averred that:

[S]he did review the dates you submitted and determined you were paid for all of
the dates with the exception of two. You were not paid for two dates as [M]
verified no meetings were scheduled with you by management. You were not
otherwise in a duty status and were paid for only the time you attended the
scheduled meetings. [M] stated in her declaration she did follow up on the
feasibility of the mirror bid and was informed a mirror bid could not be created.

The instant appeal followed.

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).

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In the instant case, we find that no breach occurred. With regard to clause 5, Complainant argues
that, pursuant to the agreement with the Union, employees who are “requested or scheduled” to
come in on their normal work days are guaranteed 4 hours of pay, while for days that are not part
of their normal schedule, they are guaranteed 8 hours of pay. Complainant maintains that he was
only paid for the hours he was present instead of paying him according to the contractual
agreement with the union and that, under such an agreement, the Agency under-counted his
hours by 37.2 hours, and underpaid him by $1,082.00. We note, however, that the Agreement
makes no mention of guaranteeing Complainant 4 hours pay for certain days and 8 hours pay for
others, regardless of the actual amount of time Complainant was at work. Such a guarantee
comes from the Union agreement, not the settlement agreement. As noted above, the
Commission relies on the plain meaning rule which 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., 730
F.2d 377. In this case the extrinsic evidence consists of the Union agreement. As such,
Complainant’s recourse is with the Union, not this Commission.

With regard to clause 6, we note that generally, the adequacy or fairness of the consideration of a
settlement agreement is not at issue, as long as some legal detriment is incurred as part of the
bargain. However, when one of the contracting parties incurs no legal detriment, the settlement
agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC
Appeal No. 0194653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032
(June 10, 1994) (citing Terracina v. Dep't of Health & Human Serv., EEOC Appeal No.
05910888 (March 11, 1992)). In the instant case we find that clause 6 is void for lack of
consideration and vagueness. The clause leaves it up to the Agency to determine if a mirror bid is
“feasible” and provides no standards by which “feasibility” may be determined. Thus, the
provision does not contain consideration that would render that part of the agreement
enforceable. However, because other clauses in the agreement do provide consideration we do
not find the entire agreement should be set aside.

CONCLUSION

The Agency’s final decision is AFFIRMED.

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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 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. 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.

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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

April 19, 2019
Date