0120180825
05-08-2018
Merlin W,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Merlin W,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120180825
Agency No. 4V811000117
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's December 5, 2017 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 an Auto-Tech at the Agency's Vehicle Maintenance Facility ("VMF") in Ann Arbor, Michigan.
On January 17, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve an EEO complaint. Specifically, the complaint alleged that Complainant was the target of ongoing harassment by a coworker ("C1"). Most recently, C1, and sometimes another coworker ("C2") would scrutinize Complainant's time sheets, and report him to Management for "padding his time," even though his time sheets were completed in the same manner as the other auto techs. C1 and C2 allegedly filed numerous complaints, which were then forwarded to Complainant's supervisor, the VRF Manager ("M1"). Complainant reported the harassment to M1, but M1 allegedly did nothing to stop it.
Concerned for his professional reputation, Complainant notified another Manager ("M2") and the District Fleet Manager ("DM") about the harassment. The harassment continued. Complainant began to suspect Management's failure to act was based on discrimination, including retaliation for prior EEO activity in which he also named M1 and MD as responding management officials.2 Through the EEO process, Complainant agreed to resolve the matter by participating in mediation with M1, M2 and DM.
The resulting January 17, 2017 Agreement included the following relevant provisions:
1. [M1], [M2] and [DM] agree to hold a documented discussion with [C1] on or before January 31, 2017.
2. At the documented discussion, [M1], [M2] and [DM] agree to discuss with [C1] her job duties that include but are not limited to handing out parts and notifying management of part discrepancies. They also agree to discuss with her that she is not to scrutinize labor lines and that she is not to print work orders to look at labor lines.
3. At the documented discussion, [M1], [M2] and [DM] agree to discuss with [C1] the disciplinary actions that will be imposed for failing to follow instructions.
4. If [M1] leaves the Ann Arbor facility permanently (e.g., due to transfer, retirement, etc.), he agrees to provide a copy of this Settlement Agreement to his successor.
Shortly after executing the Agreement, M1 confirmed that he, M2 and DM timely complied with provisions 1, 2, and 3. However, on September 19, 20, and 21 2017, C1 harassed Complainant about his time sheets. Complainant notified M1. When M1 failed to take discernable action after two weeks, Complainant filed a new EEO Complaint, alleging harassment and breach.
The Agency properly severed the breach allegations from the harassment allegations for separate processing. After an investigation, the Agency issued a Final Agency Decision ("FAD") concluding that it was not in breach of the 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 (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).
Complainant's theory of breach is not consistent with the plain meaning of the language in the Agreement. Complainant appears to argue that M1's alleged inaction in response to C1's harassment in September 2017, breached the Agreement because the purpose of Provisions 1 through 4 was to stop the harassment by C1. There is no language in the Agreement that would require M1 to take a specific action in response to Complainant's future allegations of harassment. To the extent that Complainant interpreted the Agreement as mandating M1 to do so, such interpretation should have been reduced to writing as part of the Agreement, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 019851903 (Mar. 4, 1987). Based on the plain language of the Agreement M1's obligations are limited to the "documented discussion" in Provisions 1, 2, and 3 and to providing a copy of the Agreement to his successor if he permanently leaves the facility. Complainant's breach allegation does not dispute that M1 fully complied with Provisions 1, 2 and 3, and is still working at the facility. Therefore, we find no evidence that a breach occurred.
However, Complainant's allegation was appropriately raised as a new EEO complaint of coworker harassment. 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. According to the record, the matter is pending under Agency No. 4V811000118. If he has not done so already, Complainant may submit a copy of the Agreement and the instant decision for consideration as background information for that complaint.
CONCLUSION
Accordingly, the Agency's Final Decision, finding no breach of the 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. 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
May 8, 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 Agency Case No. 4V811000116 (resolved via settlement agreement on June 28, 2016) (Complainant alleged breach of settlement after the relevant time frame, on October 4, 2017, the Agency found no breach occurred, Complainant appealed and the matter is pending a decision by the Commission, docketed as EEOC Appeal No. 0120180777).
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