0120170522
01-12-2018
Shantay H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shantay H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120170522
Agency No. 4B060007416
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated October 19, 2016, 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 Carrier at the Agency's Chicopee facility in Chicopee, Massachusetts.
On April 20, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) Within 30 days, the Postmaster will review the policy regarding sexual harassment with the Chicopee supervisors;
(2) If counselee believes that an employee has engaged in sexual harassing conduct which she regards as sexual harassment, she will promptly report the conduct to the Postmaster. Her Postmaster will consult with the District Human Resources Department regarding the report and will determine the appropriate action to take.; and
(3) Counselee understands that if, in consultation with her medical provider, she is in need of reasonable accommodations in order to perform the essential function of her bid position at Chicopee, she will inform the Postmaster, currently Mark Sibley, that she would like to have the District Reasonable Accommodation Committee review her request for Reasonable Accommodation. The Postmaster will promptly advise the District to send a letter to Counselee to start that process.
After Complainant contacted the Postmaster in June of 2016, he did not promptly advise the District Reasonable Accommodation Committee (DRAC) to send a letter to Complainant to start the process.
By letter to the Agency dated September 23, 2016, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency negate the Agreement and reinstate her complaint. Specifically, Complainant alleged that the Postmaster failed to initiate the reasonable accommodation process, despite her request that he do so in June of 2016.
The Postmaster acknowledged that he did not forward the request to the DRAC because he understood that Complainant had to attend a meeting prior to returning to duty. After he was told otherwise, the DRAC was notified.
Agency Decision
The Agency concluded that it cured the breach. The Agency reasoned that it had 35 days from the receipt of the breach claim to resolve the matter and that it took the necessary steps to comply. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Postmaster failed to alert the DRAC and that she had to initiate the DRAC process. In addition, she maintains that she was kept out of work longer (receiving no income) due to the Postmaster's failure to act and that the Postmaster misled her into thinking that he had made the contact when he had not done so.
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).
In the instant case, the Agreement required the Postmaster to promptly advise the DRAC to send a letter to Complainant to start the reasonable accommodation process after she notified the Postmaster that she would like to have the DRAC review her request. It is undisputed that the Postmaster did not promptly advise the District of Complainant's request.
We find, therefore, that Complainant has shown that the Agency failed to comply with the terms of the Agreement. Further, there is no evidence that the Agency cured the consequences of the breach. Complainant has shown that the Agency did not cure the breach, because she claims that the Agency's lack of compliance caused her to be out of work longer and she allegedly was negatively impacted by the loss of salary.
Generally, when we find a breach, we have only two choices. We can reinstate the underlying complaint or order specific performance.
In this case, however, we do not find that this Agreement to be valid and binding. The Commission is not generally concerned with the adequacy or fairness of the consideration in a settlement agreement, as long as some legal detriment in incurred as part of the bargain. When, however, one of the contracting parties incurs no legal detriment, the settlement will be set aside for lack of consideration. See Complainant v. Dep't of Defense (Defense Intelligence Agency, EEOC Appeal No. 0120130184 (December 24, 2013).
We find, with regard to provisions 1 to 3, the Agency has not provided consideration beyond what is normally expected of a Federal agency - to ensure all supervisors are made aware of the agency's policy regarding sexual harassment, to take prompt appropriate action when responding to claims of sexual harassment and to promptly respond to an employee's request for reasonable accommodation. Therefore, we find this Agreement is void for lack of consideration.
We note that Complainant has requested that her complaint be reinstated. Inasmuch as there was no monetary consideration provided in this settlement agreement, there is no money for Complainant to return before the underlying complaint can be reinstated. We order that her complaint be reinstated.
In addition, we order the Agency to accept the complaint and direct the Agency to include any unresolved or new allegations that Complainant wishes to bring regarding alleged injuries from the incidents that occurred after the April 20, 2016 settlement agreement. The Agency shall reinstate Complainant's "complaint" from where processing ceased. We note that Complainant raised in this appeal another matter which is pending on appeal with us - EEOC Appeal 0120180619 regarding Agency Complaint 4B060014915. To the extent feasible, any unresolved matters should be consolidated for processing.
CONCLUSION
According, we REVERSE the Agency's decision finding no breach. We order the reinstatement of the complaint and continued processing of Complainant's claims, including her new claims in this matter. We REMAND the matter to the Agency for actions consistent with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to reinstitute the underlying EEO complaint, referenced as 4B060007416 that was settled by the parties on April 20, 2016 and the Agency is ordered to continue processing pursuant to the provisions of 29 C.F.R. Part 1614 from the point where processing ceased as a result of the settlement agreement. In addition, we direct that the matter will be coordinated with any new claims that Complainant raises with the EEO Counselor regarding the Postmaster's failure to comply with the terms of the Agreement, which allegedly caused Complainant to suffer financially and emotionally. The Agency shall acknowledge to the Complainant that it has received the remanded complaint(s) within thirty (30) calendar days of the date of this decision.
A copy of the Agency's letter of acknowledgement to Complainant, as well as the eventual final agency decision or order, must be sent to the 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
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.
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