0120181412
08-07-2018
Breanne S,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Breanne S,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120181412
Agency No. 4E680003715
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from a final agency decision ("FAD") dated February 14, 2018, 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 was employed by the Agency as a Clerk at the Downtown Station in Wichita, Kansas.
On October 27, 2015, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve an EEO Complaint she had raised with an EEO Counselor.
At issue is Stipulation 2 of the Agreement, which provides:
[Complainant's] modified job offer will stay at the Downtown Station indefinitely until otherwise agreed by the parties.
On August 25, 2015, the Agency offered Complainant a modified clerk position at the Downtown Post Office to accommodate physical restrictions related to two on the job back injuries. The position was not a "bid" position because it was "modified," or specifically "tailored" to her medical restrictions. Complainant would remain a mail carrier even though she performed clerk duties. Complainant voiced her concern that she was not fully recovered, but ultimately accepted the position on September 8, 2015. Shortly afterward, Complainant raised an EEO Complaint, which was resolved on October 27, 2015 via the Agreement at issue.
On September 15, 2017, Complainant was issued an "Employee Notification, Abolishment of the Mail Processing Clerk Position at Downtown Station" effective September 30, 2017. According to the Agency, "many other offices," such as the Kansas City and Omaha Stations, had been impacted by a decline in mail volume, and had to "right size" their facilities. Two clerk positions were abolished from Downtown Station, as part of the "right sizing" effort. A grievance was filed on behalf of Complainant and her coworker for Improper Abolishment.
On September 26, 2017, Complainant was issued an "Employee Notification, Involuntary Reassignment," stating that as an "unassigned regular full-time employee" she was to report to work at Delano Station in Wichita Kansas effective September 30, 2017. Complainant did not report for duty, alleging that this was the same position that caused her to reinjure her back, resulting in a second back surgery and years of ongoing pain.
On October 19, 2017, the Agency and the Union entered into a settlement agreement. In exchange for the Union withdrawing its grievance on behalf of Complainant, the Agency offered Complainant a modified assignment as a Customer Care Agent at the Wichita Customer Care Center effective October 28, 2017. The Agency reversed its decision to abolish the non-modified (bid) clerk position, and Complainant's coworker was reinstated at Downtown Station.
On October 31, 2017, rather than report for duty on her first scheduled day of work as a Customer Care Agent, Complainant raised a new EEO Complaint (Agency No. 4E680000518). Among other things, Complainant alleged that the abolishment of her position at Downtown Station constituted a breach of Stipulation 2 of the Agreement. The EEO Counselor properly severed Complainant's discrimination claims from the instant breach allegation.
The Agency dismissed Complainant's breach allegation as untimely, and alternately concluded that due to a change in circumstances, it was not in breach of the agreement as alleged.
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).
It is the burden of the Agency to provide evidence or proof to substantiate its final decision. See Complainant v. Dep't of Commerce, EEOC Appeal No. 0120142525 (Nov. 25, 2014) quoting Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
Timeliness
The regulation set forth under 29 C.F.R. � 1614.504(a) provides that if a complainant believes that the agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the EEO Director in writing of the alleged noncompliance within 30 days of the alleged noncompliance. Complainant was aware of the 30-day limitation period, as it is reiterated in the Agreement. The Agreement also specifies that Complainant must mail her written notice of breach to the Manager, EEO Compliance and Appeals at a specific address. According to the Agency, Complainant's breach notice "did not reach" the office of the Manager, EEO Compliance and Appeals until January 11, 2018.
Under a "Plain Meaning" interpretation of Stipulation 2 of the Agreement, breach would occur once the Agency no longer provided Complainant with a modified job offer at Downtown Station, and in the absence of an alternate agreement by the parties. There is no evidence that the parties reached an agreement to cancel the Agency's obligation under Stipulation 2. Therefore, we find alleged breach occurred on September 30, 2017, the effective date for Complainant's involuntary transfer out of Downtown Station. Applying the 30-day limitation period, Complainant had until October 31, 2017 to timely notify the Agency of the alleged breach.
It is undisputed that Complainant raised the matter with an EEO Counselor on October 31, 2017. Although Complainant did not directly notify the office of the Manager, EEO Compliance and Appeals, the EEO Counselor was logically connected to the process, which is sufficient to establish receipt on October 31, 2017. Significantly, the Agency has not provided any documentation to support its assertion that Complainant's breach notice was untimely.
Change in Circumstances
Where an individual bargains for a position, without any specific terms as to the length of service, the Commission has held that it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position forever. See Winkles v. United States Postal Serv., EEOC Appeal No. 01A60724 (May 2, 2006); Carter v. United Postal Serv., EEOC Appeal No. 01A60569 (May 25, 2006); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). For instance, we found no breach occurred in Buck v. Dep't of Veterans Affairs, where the complainant was reassigned to a specific position, as called for in a settlement agreement, and a year later, the position was reclassified and ultimately downgraded. EEOC Appeal No. 01A12839 (Jul. 6, 2001). Further, the Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. See Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 29, 1991).
Here, the Agency contends that the decline in mail volume in the two years since it entered into the Agreement with Complainant led to "right sizing," creating a change in circumstances that prevented the Agency from continued compliance with Stipulation 2. The Agency also explains during the "right sizing" process, it was bound by the negotiated collective bargaining agreement with the Union ("CBA"), to prioritize bid positions. Therefore, the grievance resolution restoring one of the two abolished clerk positions at Downtown Station, required the Agency to reinstate the bid clerk position, not Complainant's noncompetitive, modified clerk position. The Agency emphasizes that the Union withdrew the grievance when the Agency, in accordance with the CBA, offered Complainant an alternate position within her medical restrictions, as a Customer Care Agent at the Wichita Customer Care Center.
This modified position is not located in Downtown Station, so while it may have satisfied the Agency's obligations under the CBA, the Agency has not shown that it met its obligations under Stipulation 2 of the Agreement. Moreover, aside from its bare assertions, the Agency has not demonstrated a change in circumstances such that it can no longer meet its obligation under Stipulation 2 of the Agreement. The Agency has not addressed, let alone offered evidence to support that it made good faith efforts to meet its obligations under Stipulation 2 by reaching an agreement with Complainant or providing an alternate modified offer at Downtown Station, given that the specific offer is not specified in the Agreement. There are no affidavits from subject matter experts, orders from Agency leadership, or regulatory requirements that could support the decline in mail volume at Downtown Station and how it necessitated the abolishment of Complainant's position specifically. The Agency also fails to specify and provide documentation of the provisions within the CBA that prevented it from maintaining Complainant's position. See, e.g. Morrison v. Dep't of Transp., EEOC Appeal No. 0120111326 (May 19, 2011).
CONCLUSION
Accordingly, the Agency's finding no breach of the settlement agreement is REVERSED and the case is REMANDED to the Agency for specific implementation in accordance with this Decision and the Order below.
ORDER (C0610)
Within thirty (30) calendar days of the date of this Decision, the Agency shall specifically implement Stipulation 2 of the October 27, 2015 settlement agreement by reinstating or providing Complainant with a "modified job offer" at Downtown Station, or "as otherwise agreed by the parties." If specific implementation is no longer possible due to a change in circumstances, provide sufficient documentation in the report of compliance.
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 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 (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
August 7, 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
0120181412
8 0120181412