Bennett W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 8, 20180120172400 (E.E.O.C. Feb. 8, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bennett W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120172400 Agency No. 4F-920-0122-14 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated May 25, 2017, 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 Lead Auto Technician at the Agency’s Vehicle Maintenance Facility in San Bernardino, California. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 28, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 1.0 Concerns about fairness regarding the TAG assignments will be addressed as follows: Management will assure that all TAG duties will be assigned on a fair and equitable basis among available and qualified technicians. 2.0 Management agrees that all direct orders and reprimands will be given by supervisory staff only. 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. 0120172400 2 3.0 Any appearance of conflict of interest or appearance of unfairness in assignments given by a Level 10 Technician should be followed up by Counselee with a supervisor. 4.0 Every effort will be made to make towing and shuttle duties available to all available and qualified technicians on an equitable basis. 5.0 Management agrees that abusive language will not be tolerated in the work setting. Counselee and Management agree to communicate to each other with respect and in a dignified manner. 6.0 Management agrees to hold a “stand-up” talk on dignity and respect using the joint standard. Attendance will be documented via sign in roister [sic]. By letter to the Agency dated March 25, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. In its May 25, 2017 final decision, the Agency concluded that it had not breached the settlement agreement. From that decision Complainant brings the instant appeal. 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, Complainant contends that the Agency violated paragraph 4 of the settlement agreement because it allowed only one person on Tour 2 to “shuttle and tow” vehicles, i.e., transfer vehicles between facilities. Paragraph 4 of the settlement agreement requires that towing and shuttle duties be assigned “to all available and qualified technicians on an equitable basis.” According to the Agency, during the relevant period, most of the towing work was handled by private contractors rather than Agency employees. The remainder of the towing work was performed by a mechanic who is not a technician. We find that since technicians no longer perform towing and shuttle duties, no individual technician has been favored over any other with respect to those duties. This is consistent with the equitable treatment requirements of paragraph 4 of the settlement agreement. 0120172400 3 Complainant also contends that he was “singled out” for demeaning treatment during a “stand up” meeting to discuss problems with shuttling of vehicles. The supervisor involved denies that Complainant was singled out for demeaning treatment. In any event, to the extent that Complainant is contending that the alleged conduct constituted harassment or was otherwise discriminatory, his claim should be processed as a separate complaint, rather than as a breach claim. EEOC regulation 29 C.F.R. § 1614.504(c) states that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. To the extent Complainant is alleging that he has been subjected to additional acts of discrimination and/or retaliation, he should contact an EEO Counselor, if he wishes to pursue these matters through the EEO process. CONCLUSION We find that the Agency has substantially performed its obligations under the settlement agreement and AFFIRM its final decision finding that it did not breach the agreement. 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. 0120172400 4 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. 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 February 8, 2018 Date Copy with citationCopy as parenthetical citation