Neville B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 20180120182641 (E.E.O.C. Nov. 8, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neville B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120182641 Agency No. 4G-390-0021-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated July 5, 2018, finding that it complied with the terms of a March 9, 2017 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s facility in Greenville, Mississippi. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 9, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2) The [Agency] agrees: (a) That [Complainant] currently has an eight (8) hour work restriction from his doctor-that is-he should not exceed 8 hours of total work per day. The [Agency] agrees to honor that restriction as a reasonable 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. 0120182641 2 accommodation as long as there is a medical condition requiring such accommodation and there is a medical rationale for the accommodation. i. The parties understand that there may be times when there are misunderstandings as to the restrictions or what work is being assigned or the like, or there might even be supervisors who are unaware of the restrictions or do not properly follow them. In such cases, [Complainant] may in the least show him/her this Agreement and ask that it be honored: ask him/her to call the manager ([a named manager] or whoever it is) for direction on honoring the Agreement, ask him/her to call Agency Counsel [at a specified phone number] for assistance on how to honor the agreement, or call [Agency Counsel] directly for help. [Complainant] also has his regular right to file whatever claims are available to him for any alleged future violation of law contract or policy. ii. The parties also understand though that accommodations are not guaranteed forever. If circumstances change, be they medical, or perhaps a change in jobs or operational (perhaps there is excessing under the labor contract, a plant closing, or any number of things that might affect ongoing accommodation), then accommodation might be ended or amended as appropriate by law, [Agency] policy and contract. iii. Likewise, in this case, [OWCP] might accept one of more of [Complainant’s] claims thus entitling him to modified duty. Should that happen and modified duty be available and assigned within [Complainant’s] restrictions, the parties agree that it would constitute a reasonable accommodation and might be different from what is provided in the agreement. (b) To restore 80 hours of sick leave to [Complainant’s] account so that it is available for use in the future. This will be done ASAP but no later than 120 days from the date of this agreement (it has to go through the central accounting dept.) It is done by converting 80 hours to administrative leave, and then the time is available for use again. It is not paid now but rather when it is used. The [Agency] will review the records and select the 80 hours to convert (that is just an administrative function to covert the leave). 0120182641 3 In an undated letter, Complainant alleged breach of the March 9, 2017 settlement agreement. Specifically, Complainant stated that on May 25, 2018, he was worked past his restrictions when management assigned him a pivot. Complainant requested that his underlying complaint be reinstated for further processing. In its final determination, dated July 5, 2018, the Agency found no breach. The Agency reasoned that on the date in question, a named manager (M1) stated that based on mail volume Complainant was instructed to deliver his assigned route and the auxiliary route and return to the office in eight hours. The Agency further noted that when M1 determined that Complainant had not returned to the office and may exceed his eight-hour work restriction, Complainant was contacted by the Postmaster, who instructed him to immediately return to the office. According to the Agency, in its final determination, management also arranged for another carrier to complete the delivery of mail that Complainant brought back to the office. 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). We find the Agency did not breach the March 9, 2017 settlement agreement. Generally, the adequacy or fairness of the consideration of a settlement agreement is not at issue, if some legal detriment is incurred as pan of the bargain. When, however, one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 10, 1994) (citing Terracina v. Dep't of Health & Human Serv., EEOC Request No. 05910888 (March 11, 1992). 0120182641 4 The language in provision 2(a) in its entirety (which encompasses 2(a)(i)-2(a)(iii))) does not require the Agency to take any action or incur any legal detriment other than what it is already required to do under the law. Therefore, we find that provision 2(a) in its entirety is void for lack of consideration. Because, however, consideration was exchanged, by other provisions (such as provision 2(b) pertaining to the restoration of sick leave), we do not find the settlement agreement to be invalid in its entirety, but rather reformed without provision 2(a). To the extent that Complainant is alleging that the Agency has failed to provide him with a reasonable accommodation when it worked him past his eight-hour restriction on May 25, 2018, he should contact an EEO Counselor to file a separate complaint if he wishes to pursue this matter through the EEO process.2 Accordingly, we AFFIRM the Agency’s final determination finding no breach of the March 9, 2017 settlement agreement. 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. 2 Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate the settlement agreement shall be processed as separate complaints. 0120182641 5 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 November 8, 2018 Date Copy with citationCopy as parenthetical citation