Janet B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

2019002718 (E.E.O.C. Aug. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Janet B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 2019002718

Agency No. 4G350000419

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision by the Agency dated January 27, 2019, finding that it was
in compliance with the terms of a December 20, 2018 settlement. See 29 C.F.R. § 1614.402; 29
C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.

BACKGROUND

On December 20, 2018, Complainant and the Agency entered into a settlement agreement to
resolve a matter which had been pursued in the EEO complaint process. The December 20, 2018
settlement agreement provided that Complainant’s Manager (“M1”) would complete the
provisions of the settlement agreement “on or before seven (7) days following the date of this
Settlement Agreement.” The settlement agreement contained the following provisions:

Provision 1: As soon as [Complainant] fills out her Edit Book and returns it to
[M1], [M1] will submit a request to District to adjust the cell sizes in
[Complainant’s] case. If District approves this request, the cell sizes in
[Complainant’s] case will be resized in accordance with District instructions.

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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Provision 2: [Complainant] and [M1] agree to interact with each other in
professional manner in that they will refrain from calling each other derogatory
names such as “crazy” or “devil,” yelling, screaming, using obscene language or
using excessive or obscene hand gestures when conversing with each other.

Provision 3: Inasmuch as possible, [M1] has and will continue to have an open
door policy with the employees at the Montgomery South Station. In the future,
[M1] will make herself available to [Complainant] under this policy off the
workroom floor for consultation regarding health or work issues.

Provision 4: [M1] will not initiate or condone any retribution or harassment of
[Complainant] due to the filing of this EEO Complaint.

During the relevant period, Complainant worked as a Carrier at the Agency’s Montgomery South
Station located in Montgomery, Alabama. By letter to the Agency dated January 14, 2019,
Complainant alleged that “no implementation of the agreement has been acted upon” and M1 has
“not responded or complied” with the settlement agreement. Specifically, Complainant stated
that she completed her Edit Book on December 22, 2018, but as of January 14, 2019, she had not
received any communication regarding her submission. Complainant further stated that she had
not received any communication on her case size request being submitted to the District, the
open door policy, or M1 addressing Complainant in a professional manner. Finally,
Complainant stated that M1 has harassed her and retaliated against her since the December 20,
2018 settlement agreement.

In its January 27, 2019 final decision, the Agency found no breach. The Agency stated that M1
acknowledged that Complainant submitted her Edit Book on December 22, 2018. However, M1
explained that she was not at work that day and did not learn until December 26, 2018 that
Complainant had submitted her Edit Book. M1 further explained that because Complainant was
out of the office from December 22, 2018 until January 3, 2019, M1 was not able to discuss
Complainant’s submission until January 4, 2019. On January 4, 2019, M1 stated that she met
with Complainant. M1 stated further that she informed Complainant that she could approve
some, but not all, of Complainant’s new case size changes reflected in the Edit Book. Finally,
M1 asked Complainant to review and revise some of the requested cell size changes. M1
explained that Complainant informed her on January 9, 2019, that she needed all cell size
changes reflected in her Edit Book, and M1 then completed her changes to Complainant’s Edit
Book from January 9, 2019 through January 17, 2019. Because Complainant was absent from
work from January 18, 2019 through January 21, 2019, M1 stated that she informed Complainant
of the final changes to the Edit Book on January 22, 2019.

M1 further stated that on January 22, 2019, she also submitted, to the District Operations
Program Support (OPS), a request for Complainant to receive new case labels and additional
equipment to support cell size changes reflected in her Edit Book. M1 clarified that she did not
have the authority to make any changes to any Carrier’s case cell sizes and the District OPS staff
approved these requests.
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M1 stated that Complainant’s request to change the case cell sizes was denied by the District
OPS on January 22, 2019, because Complainant’s proposed changes required that she receive an
extra piece of case equipment. Nevertheless, M1 explained that she spoke with the District OPS
regarding Complainant’s changes and the District OPS instructed M1 to conduct a study of
Complainant’s mail volume and casing of letter and flat mail Complainant received for a two-
week period, submit the results of the study, and request a reconsideration of the denial.

The record includes a copy of Complainant’s time and attendance sheet indicating that she was
out of the office from December 23, 2018 through January 2, 2019.

The instant appeal followed. On appeal, Complainant argues, through her representative, that
she never had a meeting with M1 on January 4, 2019 and Complainant denies telling M1 on
January 9, 2019, that there were no revisions for her to make. Complainant further argues that
M1 acted on the settlement agreement provisions only after she submitted her January 14, 2019
letter alleging breach.

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 note that the settlement agreement imposed the Agency the following
affirmative obligation: to complete all provisions of the settlement agreement on or before seven
days after December 20, 2018.

We find that the Agency has complied with all settlement agreement provisions. We
acknowledge that Complainant submitted her Edit Book to M1 on December 22, 2018 and, due
to Complainant and M1’s absences from work, M1 ultimately submitted Complainant’s request
to the District OPS on January 22, 2019. The Commission, however, has found that failure to
satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial
compliance of its terms, especially when all required actions were subsequently completed.
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Mopsick v. Department of Health and Human Services, EEOC Appeal No. 0120073654 (August
17, 2009) (citing Lazarte v. Department of Interior, EEOC Appeal No. 01954274 (April 25,
1996)).

We further find that Complainant has not submitted sufficient evidence to support that M1
breached the remaining settlement agreement provisions.

Finally, to the extent that Complainant alleged that the Agency harassed her and retaliated
against her after the settlement execution of the settlement agreement, we have consistently held
that such claims of further discrimination should be processed as a new, separate complaint,
rather than as a breach allegation. See Bindal v. Dep't of Veterans Affairs, EEOC Request No.
05900225 (Aug. 9, 1990). Thus, Complainant should raise her claims of further harassment and
reprisal for prior protected EEO activity as a new, separate EEO claim instead of a breach
allegation.

CONCLUSION

The Agency’s final decision finding no breach of the December 20, 2018 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.
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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 21, 2019
Date