EEOC Appeal No. 0120171074
04-18-2017
Eldon P. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eldon P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120171074
Agency No. 1C-145-0013-16
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 9, 2016, 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
During the period at issue, Complainant worked as a Mail Handler at the Agency's facility in Rochester, New York. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 25, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
1. The [Agency] agrees to pay [Complainant] the lump sum of $500.00 as non-wage compensatory damages.
(2) The Agency agrees to substitute a voluntary resignation in place of [Complainant's] termination of [December 15, 2015]. [Complainant's] resignation will be effective [December 15, 2015], the same date as his termination.
(3) The [Agency] agrees to provide neutral references for any employment inquires on behalf of [Complainant].2
By letter to the Agency dated November 9, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency was not in compliance with provision (3) of the settlement agreement. Complainant stated that he applied 19 times for Postal Service positions and that he was rejected more than ten times without any reason. He further asserted that he was kept in a prescreening state for the other positions which he applied. Moreover, he stated that he suspects "foul play."
In its December 9, 2016 FAD, the Agency concluded that it was not in breach of the settlement agreement. In its final decision, the Agency stated that the Manager, Human Resources was present at the mediation and she asserted that a "neutral reference refers only to references given to outside employers when contacting the Postal Service about employees' past employment. The Agency, it is final decision, further stated that regarding Complainant's applications to the Postal Service, "there is no guarantee that [Complainant would] be rehired and [his] former work history with this Agency will be taken into account in [his] application."
The instant appeal followed. We note that Complainant, after he filed his appeal, retained an attorney. By letter dated March 10, 2017, to the Commission's Office of Federal Operations (OFO), Complainant's attorney requested to file a brief in support of the appeal. Complainant's attorney acknowledged the brief would be untimely and that he was recently retained by Complainant. In response via letter dated March 16, 2017, OFO denied Complainant's attorney's request for an extension to submit a brief because the extension request was made after the date the original brief was due. OFO further advised that if Complainant did submit a brief it would be at the discretion of the attorney working on the case whether to consider it. Complainant's attorney ultimately did file a brief on March 24, 2017. However, we decline to consider it herein because it is untimely and there is insufficient justification to extend the applicable time limit.
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 the Agency is in breach of provision (3) of the settlement agreement. While we concur with the Agency that the settlement agreement did not guarantee that Complainant would be rehired, we find that the Agency is in breach of provision (3) because the Agency's obligation to provide a neutral reference was not limited to employment inquiries outside the Postal Service. We acknowledge that the record contains an affidavit from the Manager, Human Resources (HR1). Therein, HR1 asserted that "during mediation it was agreed that [Complainant] would be given a 'neutral reference' should human resources be contacted from potential employers outside the Postal Service...I told him and his attorney several times that he could apply but that his past unacceptable performance with the Postal Service would hinder him in working for us in the future and that would remain part of his HR suitability file which has a 10 year retention period." However, we find that provision (3) of the settlement agreement specifically obligates the Agency to provide "neutral references for any employment inquires on behalf of [Complainant]" (emphasis added). This provision does not contain an exception for employment inquiries regarding Postal Service positions. If the Agency wanted to exclude the Postal Service from receiving a neutral reference, it should have expressly set forth this provision in the settlement agreement. Based on the foregoing, we find that the Agency is in breach of provision (3) of the settlement agreement.
Accordingly, we REVERSE the Agency's final decision finding no breach of the settlement agreement and we REMAND this matter to the Agency to specifically implement provision (3) in accordance with the Order below.
ORDER
Within thirty days from the date this decision is issued, the Agency is ORDERED to take the following action:
Specifically implement provision (3) of the settlement agreement which includes providing a neutral reference for any employment inquiries on behalf of Complainant, including employment inquiries from the Postal Service. Thus, the Postal Service should provide a neutral reference on behalf of Complainant for any employment applications that Complainant has currently pending before the Postal Service or future applications Complainant may file with the Postal Service.
The Agency is directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
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 (M0416)
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 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. The requests 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 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 (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
April 18, 2017
__________________
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.
2 The provisions are re-numbered herein for ease of reference.
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0120171074