0120181102
05-03-2018
Elvera S,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elvera S,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181102
Agency No. 4G330014714
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated January 6, 2018, finding that it complied with the terms of a March 28, 2014 settlement agreement. 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 Lead Sales Associate for the Agency in Hollywood, Florida.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On March 28, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The March 28, 2014 settlement agreement provided, in pertinent part, that:
3. Management will agree to return to Counselee's original bid hours of 9:30 - 18:30. Original letter issued to Counselee changing hours to 10:00 - 7:00 pm will be rescinded. Returning hours will begin on Saturday, May 17, 2014.
On June 21, 2017, Complainant filed a formal complaint of discrimination. Complainant alleged that the Agency subjected her to discrimination based on her sex, race, national origin, religion, color, disability, and in reprisal for prior protected EEO activity when in February 2017, the Agency changed her schedule by one hour, and this violated the March 28, 2014 settlement agreement.
On July 12, 2017, the Agency issued a final decision. The Agency stated that to the extent that Complainant had alleged a breach of a prior EEO settlement, the Agency had forwarded the matter to the Manager of Compliance and Appeals to process the complaint as a breach claim. Regarding Complainant's discrimination claim, the Agency determined that a one-hour change in Complainant's work schedule did not constitute a harm or loss with respect to a term, condition, or privilege of employment. The Agency dismissed the matter for failure to state a claim. Complainant appealed that decision to the Commission. On appeal, Complainant argued that in addition to the time change, the amount of overtime she received decreased, which subsequently decreased her pay.
The Commission determined that the Agency properly dismissed Complainant's claim that she had been subjected to discrimination and/or retaliation due to the one-hour change. However, regarding Complainant's appellate argument that she was received less overtime based on her protected classes, the Commission determined that Complainant had set forth an actionable claim. The Commission thus remanded that claim to the Agency for processing.
Regarding Complainant's claim that her schedule change breached the March 28, 2014 EEO settlement agreement, the Commission noted that the record was devoid of documentation that the Agency had indeed begun processing the breach claim, as stated. The Commission ordered the Agency, to the extent it had not already done so, to process the breach claim. Complainant v. United States Postal Service, EEOC Appeal No. 0120172767 (Nov. 28, 2017).
Processing Breach Claim
During the processing of Complainant's breach claim, Complainant identified the Supervisor of Customer Services as the responsible management official. Complainant stated that she first became aware on February 14, 2017, that the settlement agreement was breached when the Supervisor gave her a routing slip that changed her schedule to 10:30 am to 7:30 pm, effective February 18, 2017. Complainant stated that the change was due to "operational needs." Complainant acknowledged that two other window clerks also had their hours altered. Complainant also acknowledged that following the March 28, 2014 settlement agreement she had been assigned to a 9:30 am to 6:30 pm schedule on May 17, 2014.
The Supervisor noted that she was not working at the West Hollywood Station or even the district in 2014, and was not aware of Complainant's March 28, 2014 settlement agreement until after the time change. The Supervisor stated that Complainant's schedule, along with several others, were changed based on the operational needs of the facility. The Supervisor stated that Complainant's end tour was 6:30 pm, but that she often did not clock out until 7:00 pm or 7:30 pm, thus incurring overtime daily. The Supervisor stated that it was inefficient and ineffective to have overtime paid daily to any employee. To resolve this continual overtime situation, the Supervisor therefore changed Complainant's regular schedule to 10:30 am to 7:30 pm. After the change, Complainant's daily overtime usage decreased. The Supervisor noted that the Agency adhered to the March 28, 2014 settlement agreement for nearly three years, but that operational needs change, and employee work schedules reflect those changes.
On January 6, 2018, the Agency issued its final decision regarding the March 28, 2014 breach allegation. The Agency determined that management had the right to make changes based on operational needs, to implement a more efficient use of Agency resources, and/or to more effectively conduct business. The Agency noted that where an individual bargains for a position without any specific terms as to the length, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. Based on the record, the Agency determined that there was no evidence that the Agency breached the March 24, 2014 settlement agreement in February 2017 when Complainant's schedule was altered by one hour to better meet the operational needs of the Agency.
The instant appeal followed. Complainant did not raise any new contentions on appeal.
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, the Agency has established that it complied with the terms of the March 28, 2014 settlement agreement for nearly three years. Additionally, as recognized by the Agency, the Commission has held that where an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. Hollev v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Papac v. Dep't of Veterans Affairs, EEOC Request No. 05910808 (Dec. 12, 1991); see also Parker v. Dep't of Def., EEOC Request No. 05910576 (Aug. 30, 1991).
Here, Complainant was moved back to her desired schedule of 9:30 am to 6:30 pm for nearly three years after the March 28, 2014 settlement agreement. It was not until February 2017 that her schedule would be altered by one hour due to operational needs at the Agency. In the subject agreement, there was no expectation memorialized that Complainant would work her desired hours indefinitely. Complainant's subsequent schedule change, nearly three years after the settlement agreement was entered into, without more, is not a breach of the March 28, 2014 settlement agreement.
CONCLUSION
In summary, the Agency's finding of no breach of the March 28, 2014 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. 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. signature
Carlton M. Hadden, Director
Office of Federal Operations
May 3, 2018
__________________
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.
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