0120172616
01-12-2018
Cherilyn C,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
Cherilyn C,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120172616
Agency No. 1F9011006217
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated June 30, 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 Foreign Clerk at the Agency's Los Angeles Airport facility in Los Angeles, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 19, 2017, Complainant and the Agency entered into a settlement agreement (Agreement) to resolve the matter. The Agreement provided, in pertinent part, that:
(1) [Management Officials (MOs 1 & 2)] agree to assist [Complainant] with her time discrepancies. She will provide pay statements for review;
(2) [Complainant] agrees to work with Tour 1 Management to improve communication and the work environment;
(3) [Complainant] agrees to provide a formal written statement regarding her allegations of [CW: a coworker] physically attacking her;
(4) [MO1] will open an investigation into this allegation immediately
Complainant sought Pre-Complaint Counseling on May 9, 2017, completed a Pre-Complaint Processing Form on May 18, 2017 and met with an EEO Counselor. Her claim was recognized as constituting an allegation of breach pf the Agreement rather than a new complaint. The Agency described Complainant's conversation with the EEO Counselor as follows:
When you spoke to [MO 1] on the phone on May 4, 2017, he told you there were no discrepancies with your pay however your days off when you were on Tour 1 were Thursday/Friday but TACS (Time & Attendance Control System) had different off days for you. You worked Christmas Eve, New Year's Eve and some overtime days you weren't
paid for. You were flagged as having five absences on your record when you were at work.
The problems with your pay began approximately the last week of December 2016 through
The whole month of January 2017.
MO 1 told you when he asked other employees about the incident on December 6, 2016, with CW, no one said anything and told you [sic] nothing happened which is not true.
In its June 30, 2017 FAD, the Agency concluded it had not breached the Agreement. Specifically, the Agency noted that MO 1 said that Complainant had provided him with three earning statements covering the last pay period of 2016 and the first two pay periods of 2017:
which covers the time frame of December 10, 2016, to January 20, 2017. [MO 1] reviewed the clock ring report and there were no paid hours disallowed and the time report matched the earning statements. [Complainant] was concerned about her holiday pay during the time frame however the report and her earnings statement show 3 paid holidays and there were 3 holidays during the time period of Pay Period 26 of 2016 and Pay Periods 1 and 2 of 2017. The results of the pay review were discussed with [Complainant]. [Complainant] was also concerned that her scheduled days off were incorrect in the TACS system. [Complainant] came from Tour 1 so when an employee works Tour 1 and as an example reports at 11 :30 pm on one date but they are working the shift for the next calendar day [sic]. He explained this to [Complainant] and also told her if the days off were incorrect and the system showed work hours on a date that was a day off she would automatically be paid overtime at time and a half so she would be overpaid not underpaid.
The Agency further noted that an investigation was conducted into the allegations made by Complainant against CW but "[t]he investigation revealed nothing to support [Complainant's] claim that she was attacked, assaulted, or slapped 15 times by [CW]." The Agency therefore found no breach of the 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 (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 we find that Complainant has not met her burden of establishing a breach occurred. On appeal, Complainant alleges she recently incurred another attack by another employee and that management did not follow Agency procedure in dealing with the incident. She further alleges that she sought to file two grievances with the union but that another Management Official (MO 3) never received Complainant's grievance forms. Complainant next alleges that she did not have union representation during the signing of the Agreement. Finally Complainant alleges that MO 1 did not complete a thorough investigation into her allegations against CW and that MO 1's statement is:
[I]ncorrect and untrue. I have over 5 witness [sic] and employees to support my claim of being attacked by [CW]. It was caught on camera. I told [MO 1] that he should run the cameras back on the day the attack happened and he can see clearly for himself what happen. [sic]
We note that, with regard to the new incidents of allegedly being physically and verbally attacked, as well as the failure to process Complainant's grievance forms, these matters are not the subject matter of the instant breach claim. Complainant, furthermore indicates that she has initiated a new complaint to address the new incidents of being attacked. If she has not yet done so, Complainant may wish to file a new complaint to address these matters. With regard to her allegation that MO1 did not conduct a thorough investigation, Complainant has provided no evidence beyond her own assertion that CW attacked her. Complainant maintains that she has witnesses but has provided no statement from any of them. We therefore find that Complainant has not shown a breach occurred.
CONCLUSION
The FAD is AFFIRMED
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 (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
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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