0120180617
04-20-2018
Natalie F.,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
Natalie F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180617
Agency No. 4F-900-0247-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency 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; .405, .504(b).
BACKGROUND
During the relevant period, Complainant worked at an Agency postal facility in Los Angeles, California. On May 9, 2017, the Agency issued Complainant a Notice of Removal. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor the same day to initiate the EEO complaint process.
On August 4, 2017, Complainant and the Agency entered into an EEO Settlement Agreement2 to resolve the matter. The EEO Settlement Agreement provided, in pertinent part:
1. I, [Complainant], do hereby voluntarily agree to withdraw the above captioned complaint and any and all relative administrative and judicial claims, issues and demands arising from said complaint.
2. My withdrawal is based on the stipulation(s) that:
Management and [Complainant], herein after referred to as "the Counselee", agree that the Counselee has accepted a Last Chance Agreement dated August 3, 2017, to resolve the issues raised in this case. This agreement represents a complete settlement of all issues raised in the complaint and may not be regarded as a precedent, or cited for any purposes in any other proceeding or in any other form.
By letter to the Agency, dated August 11, 2017, Complainant initiated EEO contact alleging that the Agency was in breach of the settlement agreement, and that the Agency otherwise discriminated against her based on race, disability, and reprisal for prior EEO activity. The Agency docketed the discrimination claim as Agency No. 4F-900-0373-17.3
Regarding breach, Complainant alleged that the Agency denied her back-pay between June and August 5, 2017 (the period she was in non-pay status due to removal). Specifically, in her appellate brief, Complainant alleged that the Agency coerced her into signing the settlement agreement, the agreement did not reference EEO, and she informed the EEO office that her representative would be away for two weeks, but the Agency led her to believe she would be fired if she did not sign the agreement. Complainant stated that she was uncomfortable with the provisions of the agreement. Complainant alleged that the circumstances seemed to be orchestrated by her Manager (S1), the Alternative Dispute Resolution Manager (S2), and the EEO Manager (S3), but all of them did not sign the agreement. Complainant stated that she felt "rushed and scared" because S2 continuously stated "time is running out." Complainant stated that she was not given the opportunity to file formally and the EEO process was not explained to her properly. Complainant asked to rescind the LCA and "be allowed to work in peace."
The Agency did not issue a final decision regarding Complainant's allegation of noncompliance prior to Complainant's instant appeal. However, in correspondence dated February 15, 2018, the Agency concluded Complainant's allegation of breach is untimely and without merit. The Agency stated that Complainant alleged coercion to sign the settlement agreement in December 2017, but should have done so in August when she raised her other concerns about the agreement. Further, the Agency stated, "[C]omplainant received substantial value through the settlement - her reinstatement to employment." The Agency stated that it only required Complainant to report to work on time with some exceptions allowed and follow its policies and procedures. Also, the Agency stated that the agreement states, near Complainant's signature, that it is not signed in duress or under coercion.
ANALYSIS AND FINDINGS
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 Defense, 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).
If coercion, misrepresentation, misinterpretation, or mistake occurs during the formation of the contract, assent to the agreement is impossible, and the Commission will find the contract void. See Pridgen v. Nuclear Regulatory Commission, EEOC Appeal No. 0120130496 (May 9, 2013) (citing Shuman v. Dep't of the Navy, EEOC Request No. 05900744 (July 20, 1990)). But because the Commission favors the voluntary resolution of discrimination complaints, settlement agreements are not lightly set aside. Betts v. EEOC, EEOC Appeal No. 0120091969 (Oct. 14, 2009). The Commission examines coercion claims with much scrutiny. Id.
The party raising the defense of coercion must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat. See id. Such a threat may be expressed, implied, or inferred from words or conduct, and must convey an intention to cause harm or loss. A Complainant's bare assertions will not justify a finding of coercion. Lenihan v. Dep't of the Navy, EEOC Request No. 05960605 (December 5, 1997).
Applying the above case law, we find that Complainant has not proven she entered the settlement agreement under duress or coercion. In the instant case, on August 3, 2017, Complainant and the Agency entered a LCA to reduce her Notice of Removal to a time-served suspension with several stipulations, in exchange for Complainant withdrawing her administrative claims regarding the removal. On August 4, 2017, Complainant and the Agency signed an EEO Settlement Agreement, wherein Complainant agreed to voluntarily withdraw Agency No. 4F-900-0247-17 consistent with the August 3 last chance agreement.
Complainant's contention that the Agency would "fire" her if she did not sign the LCA is misleading. In May 2017, the Agency removed Complainant from employment and, in August 2017, it offered her a "last chance" to return to the workplace. During the three months between, Complainant was not an Agency employee. The very purpose of the agreement was that the Agency would reinstate Complainant and in return she would agree to withdraw her complaint. To rescind the agreement would return Complainant to a removed status. The Commission finds that although Complainant may not have liked the choice she was given, there is nothing to support her contention that she was forced to sign the agreement. Further, we find that back-pay, as Complainant requested on appeal, was not a provision of the EEO settlement agreement.
CONCLUSION
We AFFIRM the Agency's finding of no breach.
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
April 20, 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 parties also entered into a last chance agreement (LCA), dated August 3, 2017, through the negotiated grievance process. In the LCA, in pertinent part, the Agency agreed to reduce Complainant's May 9, 2017 Notice of Removal to "a time served disciplinary suspension." The record reflects that there are four stipulations in the LCA with which Complainant was expected to comply. The LCA stated, "violation of any of the above terms and conditions of this Agreement by [Complainant] will constitute just cause and result in the re-issuance and implementation of the Notice of Removal." Finally, the last paragraph of the agreement states, "I freely and voluntarily sign this agreement without reservation, duress, intimidation, or coercion on the part of anyone."
3 On October 31, 2017, the Agency issued a Partial Acceptance/Partial Dismissal of Formal EEO Complaint for Agency No. 4F-900-0373-17. The Agency informed Complainant that it would forward Complainant's concerns of dissatisfaction with EEO processing for Agency No. 4F-900-0247-17 to the Agency Official responsible for said processing. On November 7, 2017, the Agency issued a letter regarding dissatisfaction of EEO processing for Agency No. 4F-900-0247-17. The Agency investigated the remaining claims of Agency No. 4F-900-0373-17 and, on February 7, 2018, informed Complainant of the right to request a hearing before an EEOC Administrative Judge or an immediate final agency decision. Agency No. 4F-900-0373-17 remains pending before the Agency.
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