Margaret L,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionJul 21, 2017
0120171519 (E.E.O.C. Jul. 21, 2017)

0120171519

07-21-2017

Margaret L,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Margaret L,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120171519

Agency No. 1E801003616

DECISION

Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated February 8, 2017, 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 compliance action, Complainant worked as a Custodian at the Agency's Denver Processing and Distribution Center facility in Denver, Colorado.

On September 1, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:

(1) Management agrees to implement one training per quarter across all tours for a period of two years.

(2) [A named management official] and [Complainant] will meet every two weeks for the next 60 days to monitor and discuss [Complainant's] work situation.

(3) [The named management official] will review the weekly custodial schedule to ensure proper rotation with the understanding absences or snow may require last minute changes.

(4) [Complainant] agrees never to take photos and management agrees not to pursue any prior instance of possible photography.

(5) [The named management official] will ensure that [Complainant[ is certified on PIT equipment."

The Agreement was reached on September 1, 2016, to resolve any pending matters up to the date of execution of the Agreement. By letter to the Agency dated November 7, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to certify her on the PIT equipment and subjected her to subsequent unwarranted disciplinary action. She further alleged that the Agency failed to ensure that she received her certification, but the Agency provided others who were more recently hired with training on the PIT equipment. She requested that the Agency implement the Agreement's terms.

In its February 8, 2017 FAD, the Agency concluded that it complied with the Agreement. This 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).

The Agreement was entered as a mutual resolution of the issues that arose prior to the execution of the Agreement. In the instant case, the Agreement at paragraph 4 stated that the Agency "would not discipline Complainant for any prior instances of possible photography." She was subsequently disciplined with a notice of suspension on September 27, 2016, for making a threatening remark to a coworker, but not for photography. Therefore, there was no breach with regard to the reason of the discipline.

The Agreement at provision 5 required that the named management official "will ensure that [Complainant] is certified on PIT equipment." The Agency did not provide evidence of compliance with term 5. There is no evidence that Complainant was certified on PIT equipment or any evidence of steps taken to ensure that she was timely certified on the PIT equipment. The declaration of the Complainant's manager, dated January 24, 2017, about five months after the Agreement was signed, only indicates that Complainant "has received some PIT training . . . She will be receiving further training when permissible and trainers are available." This is clearly no evidence of the Agency's full compliance with provision 5. On the contrary, Complainant provided evidence that another employee who was hired after Complainant received more training and assistance than did Complainant.

We find that the Agency breached the Agreement. When we find a breach, we have two options: 1) reinstatement of the complaint or 2) order specific performance. Inasmuch as Complainant has requested specific performance, we will remand to require full compliance with the terms of the Agreement.

Finally, to the extent that Complainant wishes to raise new allegations that occurred subsequent to the filing of this appeal, she must contact the EEO Office to initiate any such new claims.

CONCLUSION

Accordingly, we REVERSE the Agency's Letter of Determination and REMAND the matter to the Agency for actions consistent with the Order below.

ORDER

The Agency is ordered to take the following remedial action:

1) Within sixty (60) days of receipt of this Order, the Agency shall ensure that Complainant is properly certified on the PIT equipment as required by Provision 5 of the Settlement Agreement.

2) Upon completion of the certification, the Agency must provide the Complainant with written documentation of her certification, with a copy to the EEOC Compliance Officer, as referenced below.

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.

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 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.

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. 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

July 21, 2017

__________________

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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