0120140726
04-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120140726
Agency No. 4G780020112
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 8, 2013, 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 Sales Associate at the Agency's Main Post Office in Eagle Pass, Texas.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 11, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(3) The USPS agrees that [the Postmaster] will not have private conversations with [Complainant] in a closed office unless it is unavoidable, such as a work situation that is private to her and must be dealt with immediately; but for the most part, work discussions will be left to a supervisor if possible and, for more serious matters, she would have the right to have a steward present.
Complainant sought EEO counseling on March 4, 2013, and alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Postmaster came to the office at 5:55 p.m. on February 28, 2013, while she was doing the deposit. She stated that her supervisor had left early and the Postmaster challenged her about why she was preparing the deposit on overtime.
In its November 8, 2013 FAD, the Agency concluded it was not in breach of the agreement. The Agency noted that the Postmaster was reassigned to another post office on September 23, 2013. The Agency further noted that Complainant's claims of harassment because of the actions of the Postmaster on February 28, 2013, were being processed as a separate complaint. The Agency also asserted that her breach claim was untimely raised as it was not received by the proper office until June 21, 2013.
The instant appeal followed.
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 timely raised the breach allegations when she contacted the EEO counselor. Complainant was not told by the EEO counselor that she had to send her breach allegations to the Regional Manager until June 4, 2013, and she promptly did so.
Under the circumstances of this case, we find that the contact between Complainant and the Postmaster on February 28, 2013, violated the terms of the agreement. In his affidavit, the Postmaster admitted he confronted Complainant in the empty office about why she was working on the deposit after hours. The Agency has not established that this discussion was personal to Complainant and/or "unavoidable," and it appears that it could have waited until the next day when Complainant's supervisor was available. We are particularly troubled by the Postmaster's assertion in his affidavit that he was not aware of the terms of the settlement agreement and did not know he was not supposed to have this type of contact with her. It was clearly the Agency's responsibility to inform him of the terms of the agreement in order to ensure compliance.
While the Agency asserts that the Postmaster was transferred to another facility some seven months after the February incident, this only guaranteed there would be no further breaches, and is not relevant to whether or not what occurred in February was a breach.
On appeal, Complainant has requested that the matter settled by the May 2011 settlement agreement be reinstated.1 Accordingly, the Agency's determination that it was not in breach of the agreement is REVERSED, and the underlying complaint that resulted in the settlement agreement is reinstated and REMANDED for further processing.
ORDER (E0610)
The Agency is ordered to reinstate the complaint resolved by the May 11, 2011 settlement agreement and process the remanded complaint from the point at which processing ceased in accordance with 29 C.F.R. Part 1614. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. A copy of the Agency's letter of acknowledgment to Complainant must be sent to the Compliance Officer as referenced below.
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 (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), at 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).
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
April 8, 2014
__________________
Date
1 We note that the Agency is also correctly processing the February 2013 incident as an independent claim of discrimination.
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0120140726
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140726