0120181260
05-22-2018
Janay H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janay H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120181260
Agency No. 4C170007317
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's final agency decision ("FAD") 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 Customer Service Supervisor (EAS-17) at the Mechanicsburg Post Office in Mechanicsburg, Pennsylvania.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 21, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter. The relevant portion of the Agreement, Provisions B and D, provide that:
B. There will be hands on training implemented as follows, along with efforts designed to improve communications as follows as well:
1. [Complainant] will be provided a checklist of duties and responsibilities detailing her job, especially as night supervisor, so that she can meet those responsibilities and be held accountable for same;
2. This checklist will be available for use at least as of the 1st of the new year 2018;
3. If informal communications occur between [Complainant] and supervisors wherein she receives instructions on specific manner of performing her job, a note of record of this event will be made of the date and details of this event whenever possible;
4. A form will be developed, or at least for the start of the daytime which would show if a carrier was authorized to curtail mail and who authorized this action, this will enable [Complainant] to more effectively deal with carrier issues when she takes over responsibility at her shift starting;
5. [Complainant] is to have a face-to-face contact with the person/supervisor who is "handing off" responsibility to her at the beginning of her shift; this will help her identify and address any problems as she begins her shift;
6. If carriers have taken issues or problems about [Complainant's] supervisory decisions and her interactions with them directly to another supervisor up the chain, without discussing same with [Complainant], that Supervisor will bring this action to [Complainant's] attention, indicate the nature of the questions raised by the carrier and seek [Complainant's] input on the same; this will allow all parties to full and fairly discuss the issue and resolve it and learn from the experience; this is especially to be used if the supervisor had overridden [Complainant's] decision;
7. An appropriate Supervisor will do one-day walk through with [Complainant] so the details of her job are clarified, if such is needed;
8. After the peak holiday season, [Complainant] will receive specific training on Sunday tasks before she will be put into the rotation for Sundays.
. . .
D. Any issues relating to payment due to [Complainant] will be dealt with between [Complainant] and management using the Form 1260, to start any review.
On January 6, 2018, Complainant notified the Agency in writing that it was in breach of the Agreement, and, per the Agreement, requested that her initial EEO complaint be reinstated at the point which processing ceased. The Agency reviewed Complainant's breach allegations and determined that no breach occurred as alleged. The instant appeal followed.
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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
Provision B
On appeal, Complainant contends that Management has "never" given her "hands-on" training. Regarding Provision B.7, Complainant alleges that her responsibilities encompass multiple supervisory positions, and she has not received a walk-through training on any of them. Complainant further alleges a continued lack of communication between supervisors regarding job responsibilities (Provision B.5).
As an initial matter, we note that Complainant filed her allegation of breach less than three weeks after the agreement was executed, leaving very little time to properly assess Agency compliance. With one exception, there are no deadlines explicitly stated in the agreement, and the record indicates that the one deadline (Provision B.2) concerning the provision of a checklist was met by the Agency.
Upon review, we find the Agency has provided some evidence that it complied with its general obligation under Provision B to provide Complainant with "hands-on" training. Emails in the record show that S1 ensured Complainant received hands on training for the Sunday rotation (Provision B.8) and that when S1 provided Complainant with checklists of her duties (Provision B.1), he also invited further discussion face-to-face. The email also clarified S1's expectations of Complainant's development in her supervisory role, relevant to Provisions B.3, B.6, and B.7. For Provision B.7 specifically, a January 22, 2018 email from S1 to Complainant, stated that "[another supervisor] is available this week for you for any hands-on training that you would like [regarding] the duties associated with being a rural supervisor. Take advantage of this as necessary." In addition, S1 testified in an affidavit that he performed a walk through with Complainant on an unspecified date and that "details of [Complainant's] job were clarified and questions could be addressed." In addition, the S1 provided Complainant with an email listing of seven LMS (online) courses available on the Agency's website, that he stated would allow Complainant to "gain additional knowledge and understanding of certain duties." Although Complainant concedes that she received the list of online courses, she submitted evidence of a number of instances when she was unable to access courses through the Agency's website.
Based on the record, and considering the brief period involved following the execution of the agreement, we find Complainant has failed to meet her burden of proving the Agency breached Provision B of the settlement agreement. The Agency's actions thus far appear to be a good faith effort to comply with the requirements of Provision B.
Provision D
The Agency contends that Management fully complied with Provision D when it paid a salary advance to Complainant two days after executing the Agreement. Complainant does not dispute that she received an advance, but alleges that the Agency failed to adjust her paycheck to include differential payments.
The plain language of the Agreement does not require the Agency to adjust Complainant's paychecks to include night differential payments specifically. Rather, Complainant was to initiate a "review" by Management of "any issue" relating to payment due to her by submitting a completed Form 1260. Complainant provides a completed Form 1260 for the record, but Management has not demonstrated that it reviewed and responded to Complainant's Form 1260. Further, Management has not explained how specifically the salary advance constitutes compliance with its obligation under Provision D. To establish compliance with the language of the settlement agreement, the Agency must review and address Complainant's payment issues identified on her Form 1260.
Therefore, we find insufficient evidence in the FAD to render a decision on whether the Agency breached Provision D.
CONCLUSION
Accordingly, the Commission AFFIRMS in part and VACATES in part the final agency decision and REMANDS this matter to the Agency for further processing in accordance with the ORDER below.2
ORDER
The Agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date of this decision, the Agency, to the extent it has not done so already, shall fully comply with the remainder of its obligations under Provisions B and D of the December 21, 2017 settlement agreement.
2. Within forty-five (45) calendar days of the date of this decision, the Agency shall supplement the record with evidence clearly showing that it has complied with the terms of the Provision D of the agreement. Evidence must include a detailed plain language explanation addressing Complainant's payment issues identified on her Form 1260, and if applicable, proof of any additional payment made to satisfy the Agreement. Within this same time frame, the Agency shall issue a new final determination decision on its compliance with the settlement agreement, with appeal rights to this Commission.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation, verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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). 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 22, 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.
2 Since the Agency has demonstrated partial compliance, and there is insufficient evidence for a determination on full compliance with the Agreement, we cannot reinstate Complainant's underlying complaint per her request.
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