Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 13, 2013

0120112638 (E.E.O.C. Feb. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120112638

Agency No. 4F-926-0204-10

DECISION

Complainant filed an appeal with this Commission from a final decision by the Agency dated
April 4, 2011, finding that it was in compliance with the terms of the settlement agreement into
which the parties entered. For the following reasons, the Commission REVERSES the
Agency’s final decision.

BACKGROUND

On September 21, 2010, Complainant and the Agency entered into a settlement agreement
which provided, in pertinent part, that:

(1) New labels for the case will be installed.

(2) 3971's will be placed on the manager's desk. However, Saturdays will be
placed on the stand-up desk.

(3) Copies of 3971's and clock rings will be done weekly and provided to the
Counselee by Monday before 11:30 AM.

(4) Management will assess the current status of the week for the appropriate job
offer modification.

(5) Management and the Counselee will work on improving communication.

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By letter to the Agency dated March 27, 2011, Complainant alleged that the Agency was in
breach of the settlement agreement. Specifically, Complainant alleged that the Agency
breached provisions (1), (4), and (5).

In its April 4, 2011 final decision, the Agency concluded that it did not breach the terms of the
settlement agreement. With regard to provision (1), the Agency stated that new labels are
presently being installed on all the routes due to the downsizing of carrier equipment as a result
of FSS implementation on April 12, 2011. With regard to provision (4), the Agency stated
that route adjustments were implemented in February taking Complainant’s actual time into
consideration for the adjustments. Additionally, the Agency noted that adjustments will also be
done in May for the FSS environment. With regard to provision (5), the Agency stated that
management has maintained an effort to improve communications; however, an altercation
occurred involving Complainant which was not related to this agreement.

On appeal, Complainant reiterates her position that the Agency breached provisions (1), (4),
and (5) of the agreement. With regard to provision (1), Complainant states that there are no
new labels for her case as of the date of her appeal despite her written request for new labels
on December 23, 2010, and management's statement that new labels were being installed for
all routes as a result of implementation of FSS on April 12, 2011. With regard to provision
(4), Complainant states that she does not have a new job offer from the settlement agreement.
With regard to provision (5), Complainant alleges she is still subject to unprofessional and
hostile work environment conditions and states she still has to file grievances to be treated with
dignity and respect.

ANALYSIS AND FINDINGS

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, the Commission finds the Agency is in breach of provision (1) of the
settlement agreement. Provision (1) stated the Agency would provide new labels for the case.
Complainant claims the Agency has failed to provide new labels for the case. Although the
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Agency noted in its final decision that new labels were being installed on all the routes due to
the downsizing of carrier equipment as a result of FSS implementation on April 12, 2011, it
provides no evidence that the new labels were actually installed. Although there is no
provision in the agreement as to when the labels shall be installed, the passage of more than six
months (when the Agency decision was issued) coupled with a lack of explanation from the
Agency as to why the labels have not been installed, is sufficient to show that the delay has
been unreasonably long. Thus, we find the Agency in breach of provision (1) of the settlement
agreement. We note that as of the date of this decision, which is more than two years after the
agreement was entered into, the Agency has not claimed or provided evidence showing that it
has complied with provision (1) of the agreement.

With regard to provision (4), we find this provision is unenforceable. Specifically, we note the
wording of provision (4) does not clearly indicate what the parties agreed to with regard to this
provision. Additionally, we note there appears to be no meeting of the minds as to what this
provision meant. Complainant apparently believed that as a result of provision (4) she would
receive a new job offer from the Agency, but the Agency believed that this provision
concerned taking Complainant’s actual time into consideration for route adjustments. Due to
the vagueness of the provision and the lack of the meeting of the minds with regard to this
provision, we find provision (4) is unenforceable.

Additionally, we find that provision (5) is unenforceable. The provision that “Management
and the Counselee will work on improving communication” is too vague to be enforced. If
Complainant believes that she is being subjected to subsequent acts of discrimination, then she
should contact an EEO Counselor pursuant to 29 C.F.R. §1614.105.

CONCLUSION

The Agency’s decision that it did not breach provision (1) of the settlement agreement is
REVERSED and the matter is remanded to the Agency for further processing in accordance
with this decision and the ORDER herein.

ORDER

Within 60 days of the date this decision becomes final, the Agency shall comply with provision
(1) of the settlement agreement, which states that “[n]ew labels for the case will be installed.”
Evidence showing compliance with provision (1) of the agreement shall be placed into the
record and sent to the Compliance Officer as referenced herein within 60 days of the date this
decision becomes final.

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
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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

(M0610)
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), 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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).

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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

February 13, 2013
Date