Derrick P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 25, 2018

0120180042 (E.E.O.C. Sep. 25, 2018)

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

Derrick P.,1
Complainant,

v.

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

Appeal No. 0120180042

Agency No. 4B-020-0033-17

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated August 23, 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 Regular Carrier at the
Agency’s Roxbury Carrier Annex in Roxbury, Massachusetts. Believing that the Agency
subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to
initiate the EEO complaint process. On June 22, 2017, Complainant and the Agency entered into
a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part,
that:

1. The Postmaster (S1) and Complainant agree to work together on community outreach
events, which might include community tours of the postal facility and job fairs to begin
within 60 days; and

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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2. Within 30 days, S1 agrees to complete Racial Awareness Training and inform Complainant
when he has completed training.

By letter to the Agency dated August 16, 2017, 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 the Agency failed to comply with the settlement agreement
because as of August 16, 2017, S1 had failed to inform Complainant or his representative of S1’s
completion of Racial Awareness Training.

In its August 23, 2017, letter to Complainant, the Agency concluded that although a technical
breach occurred when S1 was late in completing the requisite training, the breach was cured within
an appropriate period. Specifically, the Agency noted that pursuant to 29 C.F.R. § 1614.504(b),
an agency has thirty-five (35) days from the receipt of a claim of breach to resolve the matter, and
S1’s completion of the training course occurred shortly after the 30-day period required under the
settlement 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).

Failure to satisfy a time frame specified in a settlement agreement does not prevent our finding
that an agency has substantially complied with its terms, especially when it subsequently has
completed all required actions. See Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274
(Apr. 25, 1996); Sortino v. U.S. Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996), citing
Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sep. 30, 1993) (two-week delay in
transfer of official letter of regret rather than letter of apology found to be substantial compliance);
Centore v. Dep't of Veterans Affairs, Appeal No. 01A04637 (Nov. 2, 2000) (a few days after sixty-
day time period for compliance not a material breach of settlement agreement).

In the instant case, Complainant has alleged that the Agency is in breach of the settlement
agreement for failure to adhere to the agreed upon completion time for S1’s Racial Awareness
Training.
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The record indicates that S1 completed the requisite training on July 25, 2017, and notified
Complainant in writing on August 22, 2017. In addition, S1 reported that he verbally notified
Complainant of his completion of the training on August 1, 2017.

To the extent that a breach occurred, we find that the Agency cured the breach within 35 days of
Complainant providing notice of breach. For these reasons, we find that Complainant failed to
show that the Agency is in non-compliance with the settlement agreement.

CONCLUSION

Accordingly, the Agency’s finding of no breach of the second provision of the settlement
agreement 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.
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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

September 25, 2018
Date