Concepcion M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 30, 2019

2019002278 (E.E.O.C. Aug. 30, 2019)

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

Concepcion M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 2019002278

Agency No. 4J481015918

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated December 19, 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 worked as a Clerk, PS-06, at the
Agency’s Highland Park Post Office facility in Highland Park, Michigan.

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On September 27, 2018,
Complainant and the Agency entered into a settlement agreement to resolve the matter. The
settlement agreement provided, in pertinent part, that:

(1) Management agrees to have a Management staff person present at all
times during Complainant’s work hours.

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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By email to the Agency dated October 19, 2018, Complainant alleged that the Agency was in
breach of the settlement agreement and requested that the Agency specifically implement its
terms. Specifically, Complainant alleged that, on October 17, 2018, the Agency failed to have a
supervisor present at all times during her work shift, 9:00 am to 5:30 pm. She alleged that a
supervisor arrived at 11:36 am and left at 1:55 pm and did not return or get a replacement.

In its December 19, 2018 FAD, the Agency noted that, in response to Complainant’s breach
allegation, it conducted a limited inquiry, during which Complainant stated that Management had
been breaching the settlement “from day one.” The Agency notes Complainant’s allegations that,
on October 17 and 18, 2018, the supervisor arrived late and/or left early. Complainant also
acknowledged that, following Complainant’s breach allegation, the Customer Service Supervisor
was assigned to be present at the Agency’s facility during Complainant’s shift.

The Customer Service Supervisor stated that, after the October 17, 2018 incident, she was
assigned to work at the Agency’s facility from 8:30 am until 5:30 pm, or until Complainant
leaves for the day, until further notice. She has had a replacement for lunch and any other times
when she was not able to be at the location and Complainant has not had an incident since this
assignment.

The Agency concluded the Agency had not breached the settlement agreement, in that any
breach had been cured.

The instant appeal followed. On appeal, Complainant asserts that the Agency continues to breach
the settlement agreement, noting that, on January 8, 2019, there was only a supervisor for part of
the day and, on January 9, 2019 there was no supervisor; she also notes other instances when
there was no supervisor at the Agency’s facility during her work shift. She alleges that
management told her that when a particular co-worker (CW1) is not at work, a supervisor is not
required to be in the building. Complainant asserts that the settlement agreement does not state
this. She has also submitted copies of emails to and from the Agency supporting her assertions.

In response, the Agency asserts that its FAD speaks for itself.

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.
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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 shown that that the Agency breached the
settlement agreement. The settlement agreement is plain and unambiguous on its face. It
obligates the Agency to ensure that a member of the management staff is present at all times
during Complainant’s work hours. We find the record is sufficient to find that the Agency did
not have a manager present during Complainant’s work hours on numerous occasions, including
after the issuance of the FAD. Although the Agency provided a manager after Complainant
alleged breach of the settlement agreement, it failed to continue to do so. We also note that, to
the extent the Agency may have indicated it was not obligated to provide a manager when CW1
was not working, we note that the settlement agreement does not mention this. If the Agency
wanted to include such a provision, it should have argued for its inclusion.

When we find a breach, we have two choices: specific performance or reinstatement of the
underlying complaint. If Complainant chooses specific performance, the Agency is required to
have a management staff person present at all times during Complainant’s work hours.
Alternatively, should she choose reinstatement of her underlying complaint, the Agency is
required to resume processing of the underlying complaint in accordance with the following
Order. Therefore, we order that Complainant be provided the option of specific performance of
the agreement or rescinding the agreement and reinstating of his underlying complaint.

We also note that the settlement agreement also contains the following term:

(2) Management agrees to ensure that Complainant has a safe and hostile-free
work environment.

The above provision is void because it provides nothing more than what an employee is entitled
to.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find the Agency breached the terms of the July 11, 2018
settlement agreement and REMAND the underlying EEO complaint for further processing in
according with this decision and the ORDER below.
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ORDER

Within fifteen (15) days from the date this decision is issued, the Agency is ordered to notify
Complainant of her option to either: (1) rescind the settlement agreement and have her
underlying complaint reinstated for processing, or (2) obtain specific performance of the
agreement. The Agency shall also notify Complainant that she has fifteen (15) calendar days
from the date of his receipt of the Agency's notice within which to notify the Agency of her
election. If Complainant does not timely respond in writing, the Agency shall presume this to
mean she chooses option 2.
If Complainant chooses option 1, the Agency shall rescind the settlement agreement in its
entirety and reinstate the underlying EEO case from the point processing ceased and process it
under the procedures and timeframes set forth in 29 C.F.R. Part 1614.
If Complainant chooses option 2, the Agency shall ensure that a member of the management
staff is present at all times during Complainant’s work hour. The Agency shall start performing
these actions within 15 calendar days after receipt of Complainant’s election decision.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
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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.
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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 30, 2019
Date