0120181338
08-17-2018
Ronnie R,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ronnie R,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181338
Agency Nos. 4G-752-0074-17 & 4G-752-0022-18
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from final decisions by the Agency, dated February 8, 2018 and August 3, 2018, respectively, dismissing his EEO complaint pursuant to 29 C.F.R. � 1614.107 and finding that it complied with the terms of a settlement agreement into which the parties entered pursuant to 29 C.F.R. � 1614.504.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at a Dallas, Texas station of the Agency. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Subsequently, Complainant filed a formal EEO complaint, which the Agency docketed as Agency No. 4G-752-0074-17 (# 0074).
On April 6, 2017, Complainant and the Agency entered into a settlement agreement to resolve # 0074. The settlement agreement provided, in pertinent part, the following terms.
(1) [Complainant] brought an EEO complaint primarily regarding [Office of Workers' Compensation] OWC matters. By way of background, the major dispute has to do with [Complainant's] 8-hour restriction and ability to complete his mail route and work within those 8 hours. The parties wish to resolve the matter amicably without the need for further cost or litigation.
(2) The parties agree that:
a. the [Agency] will do a 5-day route count of [Complainant's] route so that the parties will have some objective criteria to discuss based on the results;
b. the route count will start on a day that the parties agree to, within the next three weeks if possible or as soon as possible after that;
c. the parties agree to cooperate with each other during the route count. . . .
d. After the route count, the management personnel will meet with [Complainant] (and he may include his EEO or union representative if he wants), at a time and place they agree to, to discuss the results and attempt to agree on the best way possible to move forward and resolve the 8-hour dispute that led to this complaint.
By letter to the Agency dated May 15, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate the underlying complaint, # 0074, for further processing. Specifically, Complainant alleged that the Agency failed to conduct the route check across five consecutive days, to start the check in a timely manner (on May 9, 2017), or to commit full attention to conducting the route check.
On January 20, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on reprisal for prior EEO activity when, on October 10, 2017, the Agency officially adjusted Complainant's assigned route without the 5-day route check provided in the agreement for # 0074. The Agency docketed the October complaint as Agency No. 4G-752-0022-18 (# 0022).
In a Dismissal of Formal Complaint, dated February 8, 2018, the Agency dismissed # 0022 pursuant to 29 C.F.R. � 1614.107(a)(8), stating it was inappropriate to initiate a new complaint on processed matters. The Agency stated that it was inappropriate for Complainant to file a new complaint on his allegation of breach. The Agency stated that it referred the breach allegation to a Regional Manager for inquiry and issuance of a letter of determination. The instant appeal from Complainant followed. On appeal, Complainant stated that he filed # 0022 because his new Manager began harassing him about not carrying his full mail route, although to do so violated his medical restrictions.
In a decision dated August 3, 2018, the Agency found that it made good faith efforts to complete a 5-day route check and was in substantial compliance with the April 2017 settlement agreement. The Agency stated that a 5-day route check typically includes five days of office inspection and one day of street inspection, and the average of the five days determines the length of the route. The Agency stated that a Management Official (S1) and Complainant originally scheduled the route count for May 6 -12, 2017, but S1 was absent May 6 and Complainant was absent May 8. The Agency stated that S1 conducted office inspections on May 9 and 10, and partial street inspections on May 9 through 11. The Agency stated that it took three days to complete the street inspection and Complainant did not fully cooperate or make good efforts to fulfill the mail count on those days. (The Agency noted that, on two days, Complainant left work early and gave a portion of his route to another carrier.) Further, the Agency stated that S1 was absent May 15 - 21, 2017 and Complainant was absent May 22 - 27, 2017 and additional dates due to doctors' appointments. The Agency stated that, subsequently, the parties agreed that it was difficult to get an accurate assessment of mail volume in Texas during the summer, due to heat. The Agency added that it attempted to conduct an office and street inspection on July 24, 2017, but Complainant did not complete his route that day. The Agency stated that, after summer, Complainant would not agree to new dates for the route count, and instead requested $250,000 to retire2. The Agency stated that Complainant informed it he no longer wanted to pursue his breach claim and would file a new EEO complaint on the adjustment of his route. The Agency stated that, in October 2017, the Agency's District Operations Support Team reduced the District's territory and thereby Complainant's route. The Agency stated that the October 2017 action rendered the settlement agreement "obsolete," but the Agency substantially complied prior to that time.
ANALYSIS & FINDINGS
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 Defense, 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 record shows, on April 6, 2017, Complainant and the Agency entered into an agreement to participate in a 5-day count to assess Complainant's mail route. The major concern involved Complainant's 8-hour medical restriction and ability to complete his mail route within those 8 hours. The parties verbally agreed on assessment between May 6 - 12, 2017, and the Agency conducted its count May 9 - 11, 2017. The April 6 written agreement did not specify a date beyond "within the next three weeks if possible or as soon as possible after that." Further, the parties agreed to cooperate, but the Agency stated that Complainant did not fully cooperate, left early, and turned over some of his route to another carrier during the count. The Agency stated that due to absence by the relevant Manager, S1, and Complainant, it was difficult to continue the route count in May. Further, the Agency stated that it was difficult to accurately access the mail count in the summer heat. The Agency stated that Complainant would not agree to other dates and asked for $250,000 to retire instead.
Based on the circumstances herein, we find that the Agency is in substantial compliance with the April 6, 2017 agreement. However, viewing the October 10, 2017 change of route as a subsequent act of discrimination, we find dismissal of that complaint pursuant to 29 C.F.R. � 1614.107 inappropriate.
EEOC Regulation 29 C.F.R. � 1614.504(c) states that claims of breach that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. We find that complainant's claim in # 0022 (that his route was changed based on reprisal for prior EEO activity) constitutes a claim of a subsequent act of discrimination, and must be processed as a separate complaint.
CONCLUSION
We AFFIRM the Agency's finding of no breach in Agency No. 4G-752-0074-17, and REVERSE the Agency's procedural dismissal of Agency No. 4G-752-0022-18. We remand Agency No. 4G-752-0022-18 to the Agency for processing consistent with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 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 (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
August 17, 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 We note that the request for $250,000 to immediately retire is the requested remedy in Complainant's formal complaint and the counselor's report for #0022.
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