0120170478
04-06-2017
Alisia M.,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
Alisia M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170478
Agency No. 4G-700-0100-16
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 30, 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 City Letter Carrier at the Agency's Central Carrier Station.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 2, 2016, through an alternative dispute resolution (ADR) process, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency agrees:
A. To provide a new modified job offer to [Complainant] by September 12, 2016, based on her current CA-17s for injuries to her right and left arm/shoulders. Because the second injury has not been accepted by the U.S. DOL, the [Agency] agrees to offer the modified job on an interim basis. This is more than [Complainant] would otherwise be entitled to under the typical modified job process. If DOL disapproves the claim, then the modified job may be modified again pursuant to the regular rules/laws/process/[Agency] policies for OWCP claims.
i. In addition to the normal process, once [Complainant] receives the modified job offer, she may accept it if she wants; but if she wants to review it with her doctor, she may take up to 7 (seven) business days to do so.
ii. After 7 (seven) business days (or sooner if possible), [Complainant] agrees to let her supervisor or manager know if she accepts it or if she and her doctor believe it does not comply with her restrictions.
iii. If the latter, then the [Agency] agrees to discuss the matter with [Complainant] and attempt to reach a compromise on the modified job. That conversation will be between [Complainant] and her manager [named], immediately or as soon as possible after [Complainant] rejects the offer. [Complainant] may include her representative, [named], in the conversation if she wants. (And [named manager] may consult with Agency counsel [named] for assistance if need be.)
By letter to the Agency dated September 19, 2016, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that the Agency failed to provide her with the modified job offer within the time frame provided in the settlement agreement (by September 12, 2016).
On September 26, 2016, the EEO Compliance Specialist contacted Complainant to discuss the allegation of breach. At that time, Complainant informed the Specialist that she had still not received the modified job offer. The Compliance Specialist spoke to the ADR Specialist, who indicated that the offer had been delayed and that Complainant would be receiving it in the mail. On September 29, 2016, Complainant called the Compliance Specialist to notify her that she had received the offer on September 28, 2016. Complainant also noted that the job offer was not satisfactory, for which the Specialist noted that the agreement provided for a specific process for which to follow.
In its September 30, 2016 FAD, the Agency concluded that following Complainant's September 19 breach notice, it had cured the allegation of breach in a timely manner. As such, the Agency concluded that the settlement agreement was not breached.
Complainant appealed. Complainant indicated that the Agency failed to comply with the time limits set within the agreement. Further, she stated she had not been given an opportunity to discuss the job offer which she believed failed to comply with her medical limitations indicated on her CA-17 form. She also argued that the manager refused to discuss the concerns as stated in the agreement. As such, she requests that the Commission find that the Agency breached the settlement agreement and that her underlying EEO complaint be reinstated.
The Agency asked that the Commission affirm its decision finding no breach. The Agency argued that Complainant failed to comply with the process outlined within the agreement. Further, the Agency indicated that any alleged breach on subsequent acts was prematurely before the Commission. As such, the Agency argued that it was not in breach of the settlement agreement.
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. U.S. 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).
In the instant case, the record establishes that Complainant did not receive the modified job offer required by the settlement agreement to be issued by September 12, 2016, until September 28, 2016. Complainant has indicated that she let management know that the job offer did not comply with her restrictions, particularly the driving restriction. As such, based upon the settlement agreement, the Agency had agreed "to discuss the matter with [Complainant] and attempt to reach a compromise on the modified job." Complainant asserted that she attempted to speak to management but that management has not discussed the matter with her. The Agency only asserted on appeal that the settlement agreement provides for a procedure for Complainant to raise her concerns.
Upon review, we find that Complainant has expressed her belief to management that the modified job offer does not comply with her restrictions. Agency management has not provided a response to Complainant's assertion. The Agency only argued that such a claim was prematurely raised with the Commission. However, we find that Complainant's argument on appeal is not premature. Pursuant to 29 C.F.R. � 1614.504(b), if the Agency has not responded to a breach allegation, Complainant may file an appeal with the Commission 35 days after Complainant notified the Agency with the allegation of non-compliance. Stella K. v. U.S. Postal Serv., EEOC Appeal No. 012016013 (Feb. 9, 2017).
Here, while the Agency issued a determination decision on the allegation that the job offer was made after the deadline in the settlement agreement, it has not addressed Complainant's additional breach claim that she notified management that the offer violated her medical restrictions, but management has not responded to this issue as required by the settlement agreement. Even on appeal, when it is clear the Agency was aware of Complainant's argument pertaining to management's failure to take action in compliance with provision (A)(iii) of the settlement agreement, the Agency has still not addressed this issue. Based on the record before us, we find that the Agency has not shown that it has complied with the provision (A)(iii) of the agreement. As such, we conclude, based on Complainant's unrebutted allegation, that the Agency has breached provision (A)(iii) of the agreement.
Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. Complainant has stated her request that the Commission order the reinstatement her EEO complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further action.
ORDER
The Agency is ordered to process the remanded complaint from the point at which processing ceased in accordance with the regulations set forth at 29 C.F.R. � 1614. The Agency shall acknowledge to Complainant that it has received the remanded complaint within thirty (30) calendar days of the date this decision is issued.
A copy of the Agency's letter of acknowledgement to Complainant 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 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 this decision becoming final. 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 (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 6, 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.
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