0120180405
04-06-2018
Kellye C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kellye C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120180405
Agency No. 4E980008317
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's October 6, 2017 final 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 was both a former employee and an applicant for employment at the Agency's facilities in and around Arlington, Washington. In January 2017, Complainant accepted a position with the Agency as a Rural Letter Carrier at its Arlington Post Office, subject to a 90-day probationary period.
Complainant struggled during training because, among other things, her trainer ("T1"), allegedly "yelled" and "screamed" at her on a regular basis. After reporting her difficulties with T1 to Management, Complainant was reassigned to Arlington's Smokey Point Branch in March 2017. Documentation submitted by Complainant indicates that the Arlington Post Office Postmaster ("PM") was also the postmaster for the Smokey Point Branch, and in the record, the Arlington Office PM's affidavit appears to reference the Arlington Office and Smokey Point Branch interchangeably.
At Smokey Point Branch, Complainant continued to struggle with casing mail on time. Her new supervisor ("S1") informed Management that Complainant was not "progressing" in her training, and on multiple occasions, asked Complainant if she liked working as a Rural Letter Carrier. Complainant repeatedly assured S1 that she did. When S1 met with Complainant about her performance appraisal, she asked Complainant if she would consider resigning from her position as Rural Letter Carrier and re-applying to the Agency for a Clerk position, which required different skills. Complainant declined, so S1 informed Complainant that she had decided to terminate Complainant's employment with the Agency. After her termination, effective June 7, 2017, Complainant applied to work at other Agency facilities, only to learn that the termination on her employment record disqualified her from future employment with the Agency.
Complainant contacted an EEO counselor about her inability to secure re-employment with the Agency. On June 22, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter, which provided:2
[Complainant's] PS Form 50 will be changed to reflect "Resignation" with no reference to the termination out of the Smokey Point Office.
On July 3, 2017, Complainant contacted the EEO ADR Specialist ("EEO") because her applications to other job openings at the Agency continued to be rejected. EEO verified that Human Resources ("HR") was processing Complainant's SF-50, and it could take up to 10 days for the system to reflect the change from "termination" to "resignation." On July 13, 2017, EEO notified Complainant that her SF-50 had been successfully changed. In late July and early August 2017, Complainant applied for positions at four Agency facilities in the Seattle District: Everett, Lake Stevens, Marysville, and Snohomish. Complainant received automatic response emails from the Agency confirming that her applications had been accepted for consideration, indicating that her termination was no longer reflected in the Agency's system. Additionally, Everett, Lake Stevens, and Snohomish requested interviews with Complainant.
On August 14, 2017, Complainant contacted EEO, alleging that the Agency had breached the settlement agreement. The postmasters at the Lake Stevens and Snohomish facilities both offered her a job, only to rescind their offers after an Arlington Post Office employee informed them of Complainant's termination. EEO contacted S1, who confirmed that she had not discussed Complainant's termination with anyone, and nobody had contacted her about Complainant's past employment at Smokey Point Branch. At EEO's request, S1 instructed her staff to "make no mention of [Complainant's] termination and to provide only neutral comments [if asked]." EEO also provided Complainant with instructions for filing a breach claim.
Despite EEO's efforts to ensure compliance, in September 2017, when Complainant contacted the Marysville postmaster about two positions she applied for, the Marysville postmaster allegedly told Complainant that she spoke with the Arlington PM personally and was told not to hire Complainant due to termination. By Complainant's account, the Marysville postmaster told her that she "had her chance" and now she "could re-apply a hundred times, [the Agency] is never going to hire [Complainant] again and that [Complainant]... must have done something really awful if [she] had been terminated by the Arlington/Smokey Point Post Office."
By email to the Agency dated September 6, 2017, Complainant notified the EEO Compliance Specialist ("ECS"), who allegedly responded that "[Complainant] needed to recognize that the Postmasters were going to be talking about her termination and this is not in the Agreement." ECS reviewed the matter, and based on the record, the Agency issued its final determination, concluding it had not breached the settlement agreement. 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 (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 determined that Management within the Smokey Point Branch did not share information about Complainant's termination, and therefore, it did not breach the Agreement. It also emphasizes that Complainant's breach allegation names the Arlington Post Office, not Smokey Point Branch, the facility identified in the Agreement. Additionally, the Agency offers several reasonable alternate explanations for how the postmasters at other offices where Complainant applied become aware of her termination. Specifically, the Agency's roster sharing and joint hiring practices may have created opportunities for postmasters to discuss Complainant's termination before she entered into the Agreement; "it is possible" that co-workers unaware of the Agreement discussed her termination; and Complainant's applications may have been rejected due to her leaving prior postal employment off her employment history, which constitutes a falsification.
We are not convinced by the Agency's explanation that because the Agreement identified the Smokey Point Branch instead of the Arlington Main Office, it did not breach the Agreement when it failed to notify relevant Management Officials in the Arlington Main Office about the Agreement. While plausible, the Agency offers no proof that the other postmasters were made aware of Complainant's termination outside of actions that constitute breach of the Agreement, and even if this were the case, they do not preclude a finding of breach.
By entering the Agreement, the Agency obligated itself to treat Complainant as having "voluntarily resigned." The Arlington PM's statements about Complainant's employment with the Agency undermined the purpose and effect of the Agreement with what appears to be an intent to block her future employment. According to the Arlington PM, "it is common place for [PMs] to share hiring rosters. We do have hiring events where all Postmasters interview applicants at the same place. We send applicant information to each other." The Arlington PM also recounts that "sometime in August [2017]" he visited the Lake Stevens Post Office to assist a new postmaster, when he saw a note about an interview with Complainant at her computer. The Arlington PM, unaware of the Agreement, asked if the individual referenced in the note was Complainant, and the Lake Stevens postmaster handed him Complainant's application. The Arlington PM confirmed that the individual who applied was Complainant, and that she left Arlington Post Office off her application, which is grounds for rescinding an employment offer. By Complainant's account, the Lake Stevens postmaster stated that that Management at the Arlington Post Office "told her not to hire [Complainant.]" The Snohomish postmaster left Complainant a voicemail, provided in the record, advising her not to come in for an interview, "because you were terminated" and notifying Complainant, "unfortunately you are now off our interview rolls." The Agency offers no rationale other than the Arlington PM's separate work site for its failure to notify him of the Agreement.
Complainant has offered evidence that despite his location in the Arlington Office, the Arlington PM was still in her chain of command. Complainant also provides evidence that the Smokey Point Branch is affiliated with the Arlington Office in such a way that compliance with the Agreement would warrant notifying the relevant management officials at the Arlington Office of their obligations under the Agreement. Specifically, Complainant's "employee history" record identifies her office as "ARL-Smokey Point" and her Duty Station as "ARL-Main Office Station." Complainant also provides a copy of a job posting for a position at "Arlington Smokey Point Branch," listing the Arlington PM as the point of contact. Significantly, despite her reassignment to the Smokey Point Branch, the Arlington PM stated in his affidavit that Complainant had been terminated from the Arlington Office. Complainant's accounts of her discussions the Lake Stevens and Marysville PMs indicate that they were informed Complainant was terminated from "Arlington," as does the voicemail from the Snohomish PM. There is no indication that Complainant omitted her most recent employment with the Agency as Smokey Point Branch.
In sum, we find that the actions of the Arlington PM breached the settlement agreement the Agency had with Complainant by undermining the clear intent of the agreement to reflect that Complainant had voluntarily resigned from her position at Arlington/Smokey Point Branch, rather than been terminated, and, as such, was eligible to be considered for re-employment by the postal service without consideration of the termination.
Retaliation for EEO Activity
On appeal, Complainant raises a new allegation, that her prior supervisors disclosed her termination to the other postmasters, effectively blocking her from employment with the Agency, as retaliation for her EEO activity. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. �1614.101; Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998).
Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. As these instances of alleged retaliation occurred after Complainant entered into the Agreement, and are not addressed within the Agreement, we cannot address them in this Decision. Therefore, if she has not done so already, Complainant may raise a new claim of reprisal in a separate complaint by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
CONCLUSION
Accordingly, the Agency's decision finding that it was not in breach of the June 22, 2017 Settlement Agreement is REVERSED. The case is hereby REMANDED to the Agency in accordance with the Order below.
ORDER (C0610)
1. Within fifteen (15) calendar days of the date of this Decision, the Agency must issue a Notice to Complainant, acknowledging this decision and providing her with an opportunity to choose one of the two remedies for breach:
a. Implement specific performance of the June 22, 2017 Settlement Agreement, as clarified by this Decision; or
b. Rescind the June 22, 2017 Settlement Agreement, and reinstate the underlying EEO Complaint for processing. For this option, Complainant and the Agency must return to the status quo ante, when they entered the Agreement because Commission policy provides that upon reinstatement, a complainant does not retain any benefits received under the settlement agreement. See Holmes v. Dep't of Agriculture, EEOC Appeal No. 01962207 (May 6, 1999).
2. Within thirty (30) calendar days of Complainant's response to the Notice, the Agency shall comply with Complainant's selection. If Complainant has not communicated her selection within thirty (30) days of receipt of the notice, the Agency may proceed as though Complainant selected option "a."
3. The Agency shall 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 of Complainant's choice 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 (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
April 6, 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 The date of the Agreement is also referenced in the record as June 25, 2017.
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