Rachael F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

May 2, 2019

2019000556 (E.E.O.C. May. 2, 2019)

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

Rachael F.,1
Complainant,

v.

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

Appeal No. 2019000556

Agency No. 4K280008618

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from an August 9, 2018 Final Agency Decision (“FAD”) finding that that the
Agency 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 Letter Carrier at
Oakdale Station in Charlotte, North Carolina.

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. Complainant and her non-
attorney representative engaged in mediation with the responding management official for the
Agency, the Manager, Customer Service (“M1”).

On June 6, 2018, the Parties attempted resolve the matter by entering into a settlement agreement
(“the Agreement”) which provided that:

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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1. Until a 271-G [Postal Route Inspection] is completed, [M1] will take the end of
[Complainant’s] route.

2. [M1] will tell all supervisors not to talk about [Complainant’s] personal
information on the floor. [M1] will do this today, 6/6/2018.

On or about July 6, 2018, Complainant provided written notice to the Agency that it breached
both provisions of the Agreement.

Complainant explained that prior to entering the Agreement, she was granted a “B-Team
Decision,” which determined that her delivery route was overburdened and ordered Management
to complete a 271-G Route Inspection. By Complainant’s account, the B-Team Decision also
instructed Management to use the findings of the 271-G to ensure its compliance with her 8 hour
work restriction.

Both M1 and Complainant’s immediate supervisor (“S1”), a Supervisor, Customer Service,
provided affidavit testimony that M1 fully complied with both provisions. Although they
acknowledged that the 271-G had not been finalized, they cited several attempts to do so and
confirmed that Complainant was no longer required to complete the end portion of her route.

The Agency determined that no breach occurred, and Complainant raised the instant appeal.

ANALYSIS

Under 29 C.F.R. § 1614.504(a), 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 Defense, 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 with regard to 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).

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Provision 1

As a preliminary matter, Complainant’s allegation that the Agency failed to properly complete
the 271-G Route Inspection, does not constitute breach of the Agreement. Likewise, the Parties’
dispute over who is to blame for the apparent delay in completion is also outside the scope of the
Agreement.2 To the extent that Complainant interpreted the Agreement as mandating the
completion of the 271-G within a specific time frame, and removing specific portion of the end
of her route, 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. Gen. Servs.
Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). Therefore, Complainant has not
established breach for Provision 1. See Carter v. Dep’t of the Army, EEOC Appeal No.
01985009 (Jul. 2, 1999).

Applying the “plain meaning rule,” we find the reference to “271-G” in Provision 1 is
unambiguous, as it does nothing more than signify the duration of M1’s obligation under the
Agreement to “take the end of [Complainant’s] route.” Both Complainant and M1 acknowledge
that the 271-G Route Inspection had not been fully completed at the time of the alleged breach.
Therefore, to establish breach of Provision 1, Complainant must show that M1 failed to take the
end of her route on an ongoing basis.

The Agreement is silent as to what constitutes the “end of [Complainant’s] route.” However,
Complainant does not dispute M1 and S1’s testimony regarding the specific streets at the end of
her route that they reassigned. Rather, Complainant’s appellate documents include a witness
statement discussing one incident where Complainant had been assigned her “entire” route on
June 25, 2018. From the statement, it appears that once Complainant notified Management when
she was unable to finish her route that day, Management did not require her to do so.
Complainant has not provided sufficient evidence of breach for Provision 1.

Provision 2

Complainant offers no evidence to contradict M1 and S1’s affidavit testimony that on June 6,
2018, M1 gathered S1 and the other supervisors and instructed them not to speak about
Complainant’s personal information or business on the workroom floor. On appeal, Complainant
provides coworker testimony alleging that on July 25 and August 13, 2018, S1 disregarded M1’s
instructions. However, based on the timing, we find Complainant’s proffered evidence indicates
new allegations of harassment by S1 rather than a breach of M1’s obligations under Provision 2
of the Agreement.

2 If Complainant’s purpose is to enforce the B Team Decision, she must do so through the
negotiated grievance procedure. See, e.g. Complainant v. Dep't of Homeland Sec., EEOC Appeal
No. 0120142347 (Nov. 5, 2014) (dismissing the complainant’s allegation concerning the
Agency's compliance with a grievance decision as a collateral attack on another administrative
proceeding, which failed to state a claim under 29 CF.R. § 1614.107(a)(1)).
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Confidentiality of Mediation

Confidentiality is considered one of the "Core Principles" of Alternative Dispute Resolution
(“ADR”). "Parties who know that their ADR statements and information are kept confidential
will feel free to be frank and forthcoming during the proceeding, without fear that such
information may later be used against them." See EEOC Management Directive for 29 C.F.R.
Part 1614., Ch. 3 § II.a.3 (Aug. 5. 2015) citing the Administrative Dispute Resolution Act of
1996 (“ADRA”) codified as 5 U.S.C. §574. Because confidentiality is essential to the success of
all ADR proceedings, the Commission does not consider any statements made during mediation
in its decisions. See Nakesha D. v. Dep’t of the Army, EEOC Appeal No. 0120161782 (Oct. 11,
2016). Therefore, in reaching this decision, we have not considered Complainant’s allegation
(and related statements) that she “was not granted any of the provisions that were stated and
talked about in the mediation.”

Subsequent acts of Discrimination

Complainant raises multiple subsequent acts of discrimination throughout the record. In addition
to identifying new claims of harassment by S1 for Provision 1, Complainant’s breach notice
alleges that as retaliation for her EEO activity related to the instant case, Management changed
her schedule. Complainant also alleges that she is “forced to take [her] whole route on the street
with no office time.” Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of
discrimination violate a settlement agreement shall be processed as separate complaints.
Therefore, if Complainant intended to raise a claim of retaliation, or discriminatory harassment,
Complainant should contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. The
Commission does not address whether such contact would be timely.

CONCLUSION

The Agency’s finding that it is not in breach of the settlement agreement as is AFFIRMED.

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.
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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.
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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

May 2, 2019
Date