0120161790
08-09-2016
Nicol K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nicol K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120161790
Agency No. 4C140000714
DECISION
Complainant timely appealed to this Commission from the Agency's April 1, 2016 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 a Labor Custodian (Level 05) at the Olean Post Office in Olean, New York.
Believing that the Agency subjected her to unlawful discrimination on the basis of her disability (deaf/hard of hearing), Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process (Agency No. 4C140000714). On January 14, 2014, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter. The third provision of the Agreement required Complainant's supervisor at the time to:
"Provide a "white board" to list current information for maintenance. This board shall:
a. Include Information regarding current messages, LLV status with a check box for in and out, and FSO calls made. No other information will be posted on this board;
b. The Postmaster, supervisor and maintenance will be the only persons to post on this board;
c. The white board shall be installed on or near the maintenance office no later than 1/28/2014; and
d. Proper and updated notes on the board shall be monitored by the postmaster and supervisors on an ongoing basis.
Complainant, who has a profound hearing loss and cannot follow conversations, relied on the whiteboard for the necessary information to do her job. When information stopped appearing on her whiteboard, Complainant would ask if she needed to know anything for her shift. Then, she would be told there is no new information only to be caught unprepared when a contractor arrived at the building. Once it was notified of the alleged breach, the Agency explained that the current Postmaster was previously unaware of the Agreement but now that she had been informed, she would comply. The Current Postmaster began working at the Olean Post Office in November of 2015 and became Officer-in-Charge starting in January 2015. When she learned of the Agreement on March 18, 2016, within a month of the Agency being placed on notice of the alleged breach, the Postmaster immediately took measures to comply with the third term.
Complainant contacted the Agency in January 2016, alleging that the resolutions of the agreement were not being met. In response to the Agency's request for clarification, Complainant wrote again in February of 2016, this time alleging that it was in breach of the third provision of the Agreement because she no longer received information about contractors and instructions regarding her duties on the white board. Complainant continues to request that the Agency specifically implement the terms of provision three.2
The Agency dismissed Complainant's claim pursuant to 29 C.F.R. 1614.504(b), as it cured the breach within 35 days of receiving notice from Complainant.
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 (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).
EEOC Regulation 29 C.F.R. 1614.504(b) provides that after notification by a complainant of alleged noncompliance with a settlement agreement, that agency should resolve the matter and respond to the complainant. The Commission has interpreted this provision as allowing the agency the opportunity to cure any breach that may have occurred. See Child v. Dep't of Transportation, EEOC Appeal No. 01952080 (Jan. 26,1996); Covington v. USPS, EEOC Appeal No. 01913211 (Sept. 30, 1991). Assuming a breach of the settlement did occur in the instant case, the Agency has cured that breach and Complainant has not shown that she suffered harm (aside from short term frustration and inconvenience) from the agency's delay in compliance. See Choudhary v. United States Postal Serv., EEOC Appeal No. 0120071396 (Jul. 25, 2007); see also Beers v. Dep't of the Treasury, EEOC Appeal no. 01A04975 (Oct. 17, 2001).
Here, the Agency provided evidence in the form of a statement by the Postmaster, showing that, upon being notified of the Agency's noncompliance with the Agreement in March 2016, appropriate steps were taken to cure the breach. In particular, the Postmaster described the actions she took to insure that all information pertaining to Complainant's position, including information on what contractors will be coming into the building and if there are any deviations to her regular schedule was included on Complainant's whiteboard on an ongoing and daily basis. Complainant does not dispute the Postmaster's compliance on appeal, and also notes that the Postmaster "is making an effort to give meeting details in writing." However, Complainant does not appear to agree that the Agency cured the alleged breach. For instance, she states that the "Postmaster is trying as is the manager but things seem to be getting worse instead of better... [and] the board remains an issue." These allegations are too vague to support a breach claim. Our review of the Agreement and the Postmaster's efforts to comply indicate that the matter has been cured.
CONCLUSION
Accordingly, we AFFIRM the Agency's finding that it is not in breach of the Agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 9, 2016
__________________
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 Complainant raised additional claims in her formal complaint and on appeal that will not be discussed in this decision because they were not related to the January 14, 2014 Settlement Agreement. We note that the Agency properly treated Complainant's additional claims in her formal complaint as a new EEO complaint, Agency No. 4C-140-0013-16.
On appeal, Complainant appears to raise claims relating to accommodations and harassment on the basis of disability. All new claims must be raised with the Agency EEO Office before we can review them. Complainant's appeal conveys confusion over the EEO process and her rights under the Rehabilitation Act of 1973, which protects Federal Employees from employment discrimination based on disability. The proper resource for such questions is the Agency's EEO Office. Our website also contains resources at https://www.eeoc.gov/laws/types/disability.cfm.
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