0120172901
01-12-2018
Merilyn W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Merilyn W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120172901
Agency No. 4B072001313
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the August 4, 2017 final agency decision ("FAD"), 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 Customer Care Agent at the Agency's Customer Care Center in Edison, New Jersey.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 24, 2014, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter.
Paragraph 2 of the Agreement provided, in relevant part, that:
In the event that Complainant's name is reached on the application list for the position of Customer Care Agent at the Customer Care Center which is located In Edison, New Jersey, the Agency agrees not to cite or rely on her attendance record, her safety record, or her supervisor's evaluation at the Patterson Post Office - Haledon Branch to deny her the position of Customer Care Agent at the Customer Care Center. It is understood and agreed that it is Complainant's obligation to initiate the process of applying for the Customer Care Agent position at the Customer Care Center by using eReassign. It is further understood and agreed that throughout the eReassign process, all of the rules that govern the eReassign process shall apply to Complainant, like any other employee, and that she shall receive no special preference other than the Agency's promise that it will not cite or rely on her attendance record, her safety record, or her supervisor's evaluation at the Patterson Post Office - Haledon Branch to deny her a position of Customer Care Agent at the Customer Care Center, in the event that Complainant's name is reached on the application list for the position of Customer Care Agent at the Customer Care Center.
On April 22, 2014, Complainant submitted her first application through eReassign for the position of Customer Care Agent at the Edison Customer Care Center. Applications submitted to eReassign were assessed based on the applicant's seniority and date of application. Complainant had established seniority based on her approximately 28 years as a Letter Carrier for the Agency. However, Complainant alleges that the Edison Customer Care Center was not made aware of the terms of the Agreement. Complainant contends that over 200 employees were hired during the two years she waited for an offer after she first applied through eReassign between entering the Agreement and receiving an offer for a position at the Customer Care Center in Edison, New Jersey. She alleges that her April 2014 application was deleted from the eReassign system in September 2014, and deleted again when she reapplied. This allegedly occurred three times before she was offered a position as a Customer Care Agent effective August 8, 2016.
In or around August 2016, when Complainant received her first paycheck as a Customer Care Agent at the Edison Customer Care Center, she discovered that her pay rate decreased from the amount she was receiving as a Letter Carrier. Complainant alleges that the decrease was based on her disability; she was paid less because she was not "physically injured" and therefore not considered a "rehab." Complainant acknowledges that she does not have a physical injury, but contends that she suffered mental distress that warrants the same consideration. Complainant also learned that upon reassignment, she lost her seniority status, which meant, among other things, that she did not get priority for selecting schedule or vacation days.
On July 31, 2017, the Agency received a letter from Complainant alleging that it was in breach of the Agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that:
1. The Agency failed to inform the Customer Care Center about the Agreement; and
2. On August 8, 2016, Complainant's lost her seniority date and her pay rate decreased.
In its August 4, 2017 FAD, the Agency concluded that Complainant's breach allegation was untimely, as she raised both claims well beyond the 30 day limitation period specified in 29 C.F.R. � 1614.504(a). Alternately, the Agency determined that no breach occurred, as it fully complied with the terms of the Agreement.
ANALYSIS
Timeliness
EEOC Regulation 29 C.F.R. � 1614.504(a) further provides that if a complainant believes that the agency has failed to comply with the terms of a settlement agreement or decision, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. We note that the settlement agreement informed complainant that allegations of noncompliance must be raised within 30 days of the alleged violation.
On appeal, Complainant appears to respond to the Agency's finding that her claim is untimely, stating that she "spoke to everyone that [she] thought was going to help [her] but no one has been able to assist [her]." Complainant was aware, having entered into the Agreement, that she must contact the EEO Director within 30 days if she suspected the Agency was in breach. By Complainant's own account, she suspected the Agency breached the Agreement by October 2016 at the very latest, which is when the site manager, who Complainant believed to be involved in hiring Customer Care Agents, told Complainant that she was unaware of settlement agreement. Complainant did not allege breach until July 31, 2017, well over the 30 day deadline.
Seniority and Pay Rate
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 (Dec. 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 (Aug. 23, 1990). In ascertaining the intent of the parties about the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O. v. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
Complainant reasons that the matter of pay is covered by the Agreement because "there was nothing in the [Agreement] about pay so that meant it should have remained the same [after her reassignment from Letter Carrier at the Patterson Post Office - Haledon Branch to a Customer Care Agent at the Customer Care Center in Edison, New Jersey]." To the extent that Complainant interpreted the Agreement as mandating that the Agency ensure that she maintained the same pay rate, such interpretation should have been reduced to writing as part of the settlement agreement, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 019851903 (March 4, 1987); see, e.g. Nakesha D. v. Dep't of the Army, EEOC Appeal No. 0120161782 (Oct. 11, 2016) (finding no breach when the agency failed to place complainant in her preferred position after transferring her to a different branch in accordance with a settlement agreement because the written terms of the agreement only obligated the agency to transfer complainant, and were "silent" regarding her specific title). Payment is not specified within the terms of the Agreement, so we cannot enforce Complainant's pay rate from prior to her reassignment.2
Likewise, we have previously found that a change in a complainant's seniority date because of an action directed by a settlement agreement is not a breach unless the language of the settlement agreement expressly states that the Agency must keep the complainant's seniority date the same. See, e.g. Vazquez v. United States Postal Serv., 01A23338 July 18, 2003 (finding no breach when the complainant lost his seniority after he was rehired by the Agency in accordance with a settlement agreement, because the settlement agreement "made no reference as to whether complainant would retain his original seniority date or have a different seniority date."). There is no language in the Agreement Complainant entered that directs the Agency to maintain her same seniority status upon reassignment to her Customer Care position. Therefore, we find the change in seniority does not constitute breach. However, we make no finding regarding whether Complainant is entitled to retain her original seniority date under the terms of the collective bargaining agreement, in which the Agency negotiated the terms of seniority with the Union. Interpretation of the Union contract is not within the Commission's jurisdiction. See Vazquez.
CONCLUSION
Accordingly, we AFFIRM the Agency's determination that it is not in breach of the Agreement.
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.
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
January 12, 2018
__________________
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.
2 If Complainant is alleging incorrect compensation for disabilities sustained while on the job, the proper venue to pursue her allegation is the Office of Workers Compensation Programs ("OWCP") within the Department of Labor not this Commission.
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