0120151225
11-17-2016
Janay K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janay K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120151225
Agency No. 1F921002213
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 22, 2015, 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 compliance action, Complainant worked as a Maintenance Mechanic at the Agency's M. L. Sellers Processing & Distribution Center facility in San Diego, California.
On October 29, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) Pending notification to the union, [Complainant's] sectional retreat will be reinstated per the August 27th letter.
(2) If the terms of this agreement are determined to violate a provision of the applicable collective bargaining agreement, this agreement will be null and void. In the event that this agreement becomes null and void, the complainant will be allowed to either renegotiate the terms of this agreement to be in compliance with the collective bargaining agreement or to reinstate his or her complaint.
(3) Unless otherwise agreed above, the complainant waives all rights to attorney's fees or costs related to the EEO complaints resolved by this agreement.
By letter to the Agency dated December 19, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Complainant alleged that the Agency failed to make the proper correction to reflect her proper salary. The Agency subsequently made the corrections and paid her the $4,000.00 that was due to her.
On August 25, 2014, Complainant filed a second breach claim, which is the subject of this appeal. She asserted that management failed to honor her retreat rights, which were provided by term 2 of the Agreement. The Agency asserted that term 2 of the Agreement violated the Collective Bargaining Agreement (CBA). She claimed that, on July 26, 2014, management posted vacancy announcements for three vacant Maintenance Support Clerk (MOS) duty assignments. One of the vacant duty assignments was a Tour 2 bid assignment in her section, to which Complainant felt entitled. Although she applied for the position, the Agency offered the position to another employee. Complainant filed a grievance and sought EEO counseling to address the non-selection claims, as well as filing this compliance action.
Agency Decision
In its FAD, the Agency concluded that it could not implement term 2 of the Agreement because it reasoned that term 2 violated the CBA. The Agency notified Complainant that she "could leave the settlement agreement intact with the exception of term 2 which it said "cannot be enforced" or she may void the settlement and have the underlying complaint reinstated where processing ceased. The Agency stated that this will require that the parties be returned to the status quo ante and that any provisions of the settlement agreement that have been implemented will be canceled and any monetary payments made to Complainant will be required to be returned to the Postal Service prior to reinstating the EEOC case. The Agency directed Complainant to notify the Agency if she wished to resume the processing of her EEO complaint.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant disputes that the term 2 violates the CBA. Complainant noted that the APWU (Union) President notified Complainant that it supported her grievance in which she challenged the denial of her retreat rights and claimed to have been involuntarily reassigned. In addition, Complainant stated that "the Agency continues to use their position and influence to inappropriately and adversely impact Complainant's earned pay and salary creating financial worry, stress, and harm to the Complainant."
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).
We find that the Agreement is valid and binding on both parties. The record does not show that the Agreement is unenforceable, as null and void. In the instant case, the Agreement provided that Complainant would be given retreat rights as a condition of the Agreement. It is not for us to construe the meaning or intention of the Agreement or its terms. The Agency acknowledged that it had not complied with term 2, reasoning the union objected. The record, however, does not support the Agency's statement that term 2 was unenforceable, because it was inconsistent with the terms of the CBA. Consequently, we find that the Agency has not met its burden of showing that it took the required steps to comply with the requirement to restore Complainant's retreat rights. Therefore, we find that the Agency breached the agreement when it did not restore her retreat rights.
Generally, where this Commission finds that the settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. � 1614.504 (c). In this case, the Agreement expressly permitted the renegotiation of the terms of the Agreement if the Agreement is determined to be null and void. Complainant still has the right to seek specific performance by renegotiating the terms of the Agreement, so as not to be inconsistent with the CBA or to seek reinstatement of her complaint.
It is unclear to us, based on this record, which option Complainant prefers. We therefore give Complainant the option, in accordance with the ORDER below, of either reinstating her underlying EEO complaint, or specifically enforcing the terms of the Agreement, which includes her option to have full retreat rights and /or to renegotiate the terms of the Agreement. If she chooses reinstatement of her complaint, the benefits would be cancelled, and to the extent that Complainant has received any remedial relief, she would be required to return the relief before her complaint is reinstated. A renegotiation, however, would also permit Complainant to renegotiate her waiver of the attorney's fees provision.
Finally, to the extent that Complainant wishes to address new claims of discrimination and/or retaliation, she should initiate EEO counseling with the Agency as those claims must be addressed in a separate complaint.
CONCLUSION
We find that the Agency breached the Agreement. Accordingly, we MODIFY the Agency's breach determination to reverse the Agency's conclusion that its non-compliance should be excused. We REMAND the matter in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date of issuance of this decision, the Agency is ordered to notify Complainant of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice within which to notify the Agency either that she wishes to return to the status quo prior to the signing of the agreement or that she wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, she must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the retreat rights provision and her right to renegotiate the terms of the Agreement.
If Complainant elects to reinstate her EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of issuance of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date of issuance of this decision, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 tends 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
November 17, 2016
__________________
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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