0120161482
03-16-2017
Willie P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Willie P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120161482
Agency No. 1F957005216
DECISION
Complainant filed a timely appeal with this Commission from the Agency's February 22, 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 complaint, Complainant worked as a Mail Handler Equipment Operator at the Agency's Sacramento Processing and Distribution Center in West Sacramento, California.
Believing that the Agency subjected him to unlawful discrimination and harassment (race, sex, and age), Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. In that complaint, Complainant alleged, among other things, that in June 2015, he requested assistance from four supervisors in an attempt to contact the Manager of Distribution Operations in his chain of command ("M1") to discuss the harassment he allegedly experienced and none of the supervisors notified M1.
On August 18, 2015, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter. In relevant part, the Agreement provides:
Provision 1
[M1] will communicate with her supervisors to ensure they respond correctly when an employee asks to speak with her. This means that when an employee asks to speak with [M1], the supervisor will notify her.
On October 18, 2015, Complainant alleges that "another incident of harassment by an employee of management status" occurred, resulting in permanent reassignment to another dock. Complainant informed his immediate supervisor ("S1") that he needed to speak with M1 about the incident, but S1 told Complainant M1 was unavailable that day. Complainant notified his Union Representative ("UR"), who emailed M1 on Complainant's behalf on October 19, 2015. In the email, UR explained that Complainant was experiencing harassment again and would like to meet or speak with her about it. Complainant repeated his request to S1 on October 20 and 21, 2015. Complainant did not hear back, so on October 26, 2015, UR emailed M1 again. This time he asked M1 if she could assign another management official to speak with Complainant about the harassment if she was unavailable. On October 27, 2015, UR asked M1 in person about setting up a meeting to speak with Complainant when he saw her for an unrelated matter.
On October 30, 2015, M1 contacted UR and informed him that another MDO ("M2") would meet with Complainant on November 2, 2015. Complainant and M2 met as scheduled and discussed the alleged harassment. Complainant alleges that M2 initially said he would schedule another meeting in a week, but when he followed up, M2 said that M1 would handle the harassment when she returned the following week. Complainant alleges that M1 never followed up, so he contacted an EEO Counselor on or around November 20, 2015.2
By letter to the Agency dated January 17, 2016, Complainant alleged that the Agency was in breach of the Agreement, and requested that the Agency specifically implement its terms.
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 (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).
The Agency found that no breach occurred because M1communicated the required information to her supervisors as provided in the plain language of the Agreement. Specifically, on August 28, 2015, M1 sent an email to all of her supervisor subordinates. In its entirety, the email states: "As a reminder, if an employee asks to speak to an MDO, ensure that you are notifying the MDO in a reasonable time. This will allow the MDO's to make arrangements to speak to them the same day during the tour."
Given Complainant's undisputed account of his unsuccessful attempts to reach M1 through his supervisor, we find this email is insufficient for purposes of demonstrating the Agency's compliance with Provision 1 of the Agreement.
CONCLUSION
Accordingly, the agency's decision finding no breach of the settlement agreement is REVERSED and the case is hereby REMANDED to the agency for implementation of the agreement.
ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency is ORDERED to specifically enforce Provision 1 of the August 18, 2015 settlement agreement.
The Agency is further directed to submit a Report of Compliance to its assigned Compliance Officer, referenced below. The Report shall contain supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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, Director
Office of Federal Operations
March 16, 2017
__________________
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 The Agency properly separated Complainant's harassment allegation for the October 18, 2015 incident (Agency No. IF957001816), from his breach allegation.
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