Janay K,1 Petitioner,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 21, 2017
0420170025 (E.E.O.C. Dec. 21, 2017)

0420170025

12-21-2017

Janay K,1 Petitioner, 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

Janay K,1

Petitioner,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Petition No. 0420170025

Appeal No. 0120151225

Agency No. 1F-921-0022-13

DECISION ON A PETITION FOR ENFORCEMENT

On August 10, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120151225 (November 17, 2016). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's order while the Agency filed a petition for clarification seeking guidance on how to proceed with the Commission's order.

BACKGROUND

At the time of events giving rise to this complaint, Petitioner worked as a Maintenance Mechanic at the Agency's M. L. Sellers Processing and Distribution Center facility in San Diego, California.

On October 29, 2013, Petitioner and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:

1. Pending notification to the union, [Petitioner's] sectional retreat will be reinstated per the August 27th letter.

2. If the terms of this agreement are determined to violate a provision of the applicable collective bargaining agreement, this agreement will be null and void. In the event that this agreement becomes null and void, the Petitioner will be allowed to either renegotiate the terms of this agreement to be in compliance with the collective bargaining agreement or to reinstate his or her complaint.

3. Unless otherwise agreed above, the Petitioner waives all rights to attorney's fees or costs related to the EEO complaints resolved by this agreement.

By letter to the Agency dated December 19, 2013, Petitioner alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Petitioner alleged that the Agency failed to make the proper correction to reflect her proper salary. The Agency subsequently made the corrections and paid her the $4,000.00 that was due to her.

Subsequently, Petitioner filed a second claim of breach of the settlement agreement. On August 25, 2014, she asserted that management failed to honor her retreat rights, which were provided by term 2 of the Agreement. The Agency asserted that term 2 of the Agreement violated the Collective Bargaining Agreement (CBA). She claimed that, on July 26, 2014, management posted vacancy renouncements for three vacant Maintenance Support Clerk (MOS) duty assignments. One of the vacant duty assignments was a Tour 2 bid assignment in her section, to which Petitioner felt entitled. Although she applied for the position, the Agency offered the position to another employee. Petitioner filed a grievance and sought EEO counseling to address the non-selection claims, as well as filing this compliance action.

The Agency issued its determination regarding Petitioner's claim of breach. The Agency concluded that it could not implement term 2 of the settlement agreement because it reasoned that term 2 violated the CBA. The Agency notified Petitioner that she "could leave the settlement agreement intact with the exception of term 2 which it said "cannot be enforced" or she may void the settlement and have the underlying complaint reinstated where processing ceased. The Agency stated that this will require that the parties be returned to the status quo ante and that any provisions of the settlement agreement that have been implemented will be canceled and any monetary payments made to Petitioner will be required to be returned to the Agency prior to reinstating the EEOC case. The Agency directed Petitioner to notify the Agency if she wished to resume the processing of her EEO complaint.

Petitioner appealed the Agency's final decision to the Commission, and in Appeal No. 0120151225 (Nov. 17, 2016), we found that the Agreement is valid and binding on both parties. We held that the record did not show that the Agreement was unenforceable, as null and void. The Agreement provided that Petitioner would be given retreat rights as a condition of the Agreement. The decision noted that the Agency acknowledged that it had not complied with term 2, reasoning because the union objected. However, the decision found that the record did not support the Agency's statement that term 2 was unenforceable, because it was inconsistent with the terms of the CBA. Consequently, the decision concluded that the Agency had not met its burden of showing that it took the required steps to comply with the requirement to restore Petitioner's retreat rights. Therefore, we held that the Agency breached the agreement when it did not restore her retreat rights.

Finding breach, the decision noted that Petitioner is entitled to either specific performance or reinstatement of her complaint. The decision could not determine Petitioner's preference. As such, the decision gave Petitioner the option, in accordance with its ORDER, of either reinstating her underlying EEO complaint, or specifically enforcing the terms of the Agreement, which includes her option to have full retreat rights and/or to renegotiate the terms of the Agreement. The decision reminded Petitioner that if she chooses reinstatement of her complaint, the benefits would be cancelled, and to the extent that Petitioner has received any remedial relief and she would be required to return the relief before her complaint is reinstated. The decision also noted that Petitioner still has the right to seek specific performance by renegotiating the terms of the settlement agreement, so as not to be inconsistent with the CBA.

The Order also specified that the Agency had to, within 30 calendar days of the date of issuance the decision, notify Petitioner of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. Petitioner was instructed to provide the Agency with her choice of specific performance or reinstatement within 15 days of receipt of the Agency's notice. The decision stated that if "[Petitioner] elects specific performance, the Agency shall notify [Petitioner] that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the retreat rights provision and her right to renegotiate the terms of the Agreement." The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620170212 on January 13, 2017.

On July 27, 2017, the Agency filed a petition for clarification seeking guidance from the Commission. The Agency noted that Petitioner has been promoted to a Supervisory position which means she has left the bargaining unit. Therefore, the Agency indicated that she is not eligible for retreat rights to a craft position. As such, the Agency argued that it cannot comply with the Commission's order.

On August 10, 2017, Petitioner submitted the petition for enforcement at issue. Petitioner contends that she was promoted to a Supervisor Distribution Operations position effective April 16, 2016. Petitioner indicated that she and the EEO Dispute Resolution Specialist tried to reach a resolution. Petitioner stated that, due to the promotion, she does not have retreat rights. She argued that she should have been provided with the appropriate position that was covered by the CBA in August 9, 2014. However, the Agency failed to place her in that position. As such, she would have received the salary and benefits for the Tour-2 MOS clerk position for one year and eight months prior to her promotion to her current Supervisory position. As such, she is requesting compensation for all the hours she worked outside of the Tour-2 MOS clerk position from August 9, 2014, to her promotion which was effective April 16, 2016. Petitioner claims that she is owed $ 14,400.35 in addition to the loss of overtime.

ANALYSIS

The Commission's regulations provide that an aggrieved person may petition for enforcement of a decision issued under its appellate jurisdiction. 29 C.F.R. � 1614.503(a).

In our decision finding breach, we held that Petitioner is entitled to obtain specific compliance with the settlement agreement. In this petition, Petitioner sought back pay for the position she believed she should have been provided had the Agency complied with the settlement agreement up to the date she received her promotion to the supervisory position. The Agency sought clarification on the Commission's order noting that Petitioner is now a Supervisor and no longer has retreat rights due to the promotion.

We note that the Agency failed to file a request for reconsideration regarding the Commission's decision finding that it failed to provide evidence that Petitioner did not have retreat rights. Based upon our review of the record, we determine that, in order to resolve the finding of breach of the settlement agreement, Petitioner is entitled to retreat rights from when she should have been reassigned to the Tour-2 MOS clerk position on August 9, 2014, to her promotion to the Supervisory position effective April 16, 2016. As such, we clarify the previous order and direct the Agency to calculate back pay and other benefits due Petitioner.

CONCLUSION

Based upon a review of the record and the submissions of the parties, and for the foregoing reasons, the Commission GRANTS the petition for enforcement. The Commission finds that Petitioner has shown that the Agency failed to fully comply with its November 16, 2016 Order. The Agency is required to comply with the clarified Order below.

ORDER

The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the Petitioner for the Tour-2 MOS clerk position on August 9, 2014, to her promotion to the Supervisory position in April 2016, no later than sixty (60) calendar days after the date this decision was issued. The Petitioner shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Petitioner for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Petitioner 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."

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 back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented.

ATTORNEY'S FEES (H1016)

If Petitioner 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)

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 Petitioner. If the Agency does not comply with the Commission's order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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.

PETITIONERS'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.

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 Petitioner'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

December 21, 2017

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.

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