Grady K,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Dec 5, 2019

2020000164 (E.E.O.C. Dec. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Grady K,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000164 Agency No. 4K-230-0026-15 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated August 10, 2019, finding that it was in compliance with the terms of a January 14, 2015 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 14, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The January 14, 2015 settlement agreement provided, in pertinent part, that: (1) [Complainant] shall be compensated for 10 days for out of schedule pay. (2) Once the schedule is up it shall be adhered to pending unforeseen circumstances.2 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 We note that while the original settlement agreement contains unnumbered provisions, we have numbered the provisions herein for ease of reference. 2020000164 2 By letter to the Agency dated June 22, 2019, Complainant alleged breach. Specifically, Complainant alleged that the Agency failed to follow the schedule on specified days. Complainant asserts that on specified days he was told by management to report at 8:45 a.m. while the schedule sets forth his reporting time was 8:00 a.m.3 In its August 10, 2019 final decision, the Agency found no breach. The Agency found that provision (2) of the settlement agreement was void for lack of consideration. The Agency found that management was already obligated to follow the posted schedule (provision (2) of the settlement agreement) in accordance with the National Agreement. The final decision further found that the Agency official who told Complainant to report to work at 8:45 was not one of the signatories of the agreement. In addition, the Agency stated that the Manager who told Complainant to report at 8:45 a.m. allowed him the option to report at the posted time after being shown a copy of the settlement agreement. Thus, the Agency found that the management official did not willfully violate the settlement agreement. The instant appeal followed. Complainant asserts that the manager is question had access to his files and should have been aware of the settlement agreement. Complainant states that he was not given the option to report to work at the posted time. Finally, Complainant asserts that since initiating the breach claim, his assigned money orders have twice gone missing from his workstation and that management failed to conduct an investigation. 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). Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. 3 Complainant does not allege that the Agency breached provision (1) of the settlement agreement. 2020000164 3 However, when one of the contracting parties incurs no legal detriment, the settlement agreement or specified provision will be set aside for lack of consideration. See MacNair v. U.S. Postal Service, EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992). In the instant case, we are unable to ascertain based on the record before us whether provision (2) is void for lack of consideration. We acknowledge that the record contains an affidavit by the Officer-in-Charge. Therein, the Officer in Charge asserts that “[p]er the National Agreement, management officials are to post the office work schedule weekly and employee[s] are to follow the posted schedule. If there is an operational change …the employee may be given instruction to report at a different time.” However, the record does not contain a copy of the applicable provision from the National Agreement reflecting that the Agency is already obligated to follow the posted schedule. Finally, to the extent that Complainant asserts that he has been subjected to discrimination subsequent to the execution of the settlement agreement, he should contact an EEO Counselor if he wishes to pursue these matters through the EEO process. Accordingly, we REMAND this matter to the Agency to supplement the record in accordance with the ORDER below. ORDER Within forty-five (45) calendar days from the date this decision is issued, the Agency shall: 1. Supplement the record with the relevant portion of the National Agreement reflecting whether Agency management is required to adhere to the posted schedule unless there is an operational change. 2. Thereafter, the Agency shall issue a new final decision, with appeal rights to the Commission, determining whether the Agency is in breach of provision (2) (or whether provision (2) is void for lack of consideration). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 2020000164 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020000164 5 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 December 5, 2019 Date