Mica B,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

2019003332 (E.E.O.C. Nov. 5, 2019)

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

Mica B,1
Complainant,

v.

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

Appeal No. 2019003332

Agency No. 4C-190-0118-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision by the Agency dated April 25, 2019, finding that it was in
compliance with the terms of an initial November 8, 2018 settlement agreement, as amended in
January 2019. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.

BACKGROUND

On November 8, 2018, Complainant and the Agency entered into a settlement agreement to
resolve a matter which had been pursued through the EEO complaint process. The November 8,
2018 settlement agreement provided, in pertinent part, the following:

Management agrees to reinstate [Complainant] three months after her baby is
born for another probationary period at another location in the Philadelphia
installation.

On January 28, 2019, Complainant and the Agency amended the initial settlement agreement to
include the following:

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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As a result of an EEO mediation, [Complainant] will be returned to work on 3-1-
19 to begin a new period of probation. [Complainant] will be compensated a
lump sum of $1,250. This adjustment will be made within [sic] days of the
signing of this agreement.

By letters to the Agency dated March 22 and 25, 2019, Complainant, through counsel, alleged
breach of the initial and amended settlement agreements. Specifically, Complainant alleged that
she was not reinstated to full employment on February 11, 2019, which was three months after
she delivered her baby on November 11, 2018, despite being in “continuous communication”
with management officials. Complainant further alleged that the Agency breached the amended
agreement when management officials failed to reinstate her employment on or before March 1,
2019 and the Agency breached the amended settlement agreement when it did not award her the
$1,250, in accordance with the January 2019 amendment.

In its April 25, 2019 decision, the Agency found no breach of the November 8, 2018 agreement
or the January 28, 2019 amended agreement. The Agency determined that Complainant was
reinstated on April 13, 2019. The Agency explained that Complainant’s Manager testified that
Complainant did not contact her after her baby was born, and the Human Resources Manager
testified that she was unaware of the settlement agreements until Complainant submitted her
allegations of breach. The Agency further explained that the Labor Relations Specialist testified
that it was an “oversight on his part” that Complainant was not reinstated by March 1, 2019 and
that the $1,250 awarded to Complainant was processed after her reinstatement. Therefore, the
Agency determined that all terms of the initial and amended agreement had been met because
Complainant was reinstated, and Complainant was awarded the $1,250 via a grievance
resolution.

The instant appeal followed. On appeal, Complainant, through counsel, argues that the Agency
breached both the initial and amended agreements when it failed to reinstate Complainant on
February 11, 2019, and on March 1, 2019. Complainant further states that while the Agency
contends that it initiated action to process her payment of $1,250, Complainant explains that as
of the date of her appeal, June 7, 2019, she has not yet received the $1,250 payment.

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).

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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).

Reinstatement

In the instant case, we note that the initial and amended settlement agreements provided specific
deadlines for which Complainant was to be reinstated. The record reflects that those deadlines
were February 11, 2019 and March 1, 2019.

The Agency did not reinstate Complainant until April 13, 2019. The Commission, however, has
found that failure to satisfy a time frame specified in a settlement agreement does not prevent a
finding of substantial compliance of its terms, especially when all required actions were
subsequently completed. Mopsick v. Department of Health and Human Services, EEOC Appeal
No. 0120073654 (August 17, 2009) (citing Lazarte v. Department of Interior, EEOC Appeal No.
01954274 (April 25, 1996)). Here, it is undisputed that Complainant has been reinstated, albeit
several months late. We conclude that as of now, the Agency has substantially complied with the
reinstatement provision of the agreement. However, because Complainant secured the Agency’s
compliance through the efforts of her attorney, we will order the payment of reasonable
attorney’s fees for the enforcement of the agreement.

$1,250 Award

The Agency states in its final decision that the $1,250 award had been processed and paid to
Complainant. However, Complainant argues on appeal that she has not received any payment.
The record contains two copies of a payout request history for Complainant. Both documents
indicate that an award of $1,250 was requested by the Agency for Complainant on April 22,
2019. However, one document indicates that the $1,250 award had been paid while the other
document indicates that the $1,250 award had not been issued.

We therefore order that the Agency to immediately provide Complainant $1,250, if she has not
already received the payment. Moreover, the Agency shall provide EEOC’s Compliance Officer
(see below) with proof of payment, including the method of payment, the date that the payment
was deposited in Complainant’s bank account or that the Agency issued a check for $1,250,
payable to Complainant, along with proof that the check was cashed by Complainant. If the
Agency has already provided Complainant with payment, the Agency must provide proof of
payment.

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CONCLUSION

Accordingly, for the reasons stated herein, we AFFIRM the Agency’s decision regarding the
settlement agreement pertaining to Complainant’s reinstatement. We REVERSE the Agency’s
decision regarding settlement payment and REMAND this matter to the Agency for remedial
relief, consistent with the ORDER below.

ORDER
Within thirty (30) calendar days of the date this decision was issued, if it has not already done
so, the Agency is ordered to pay Complainant $1,250. If it believes the payment has already
been made, the Agency shall provide Complainant with proof of payment, including the date that
the amount was deposited in Complainant’s bank account or that a check payable to Complainant
for $1,250 was issued, along with proof that the check was cashed by Complainant.
ATTORNEY'S FEES

If Complainant 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
enforcement of the terms of the settlement agreement. 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 receipt of this decision. 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 (K0719)
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.
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Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

November 5, 2019
Date