0120181650
09-26-2018
Nila S.,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
Nila S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120181650
Agency No. 1F927009115
EEOC Hearing No. 480-2016-00612X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated March 21, 2018, 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 compliance action, Complainant worked as a Mail Handler at the Agency's P & DC facility in the City of Industry, California.
On January 10, 2018, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
THIRD: Mutual Promises.
1. The Parties agree to the following non-monetary provisions:
(a) Complainant shall be reinstated to the Postal Service.
(b) Human Resources shall send Complainant an email no later than January 11, 2016, containing a job offer contingent upon meeting all USPS pre-hiring requirements, including, but not limited to the clean driving record, qualifying drug test, background check and passing medical assessment. Complainant's duty location shall be the Rialto, CA Post Office and the tentative re-hire date of February 5, 2018.
(c) Complainant shall be treated as a new hire, shall attend the orientation training, and is subject to all employment conditions afforded to new hires, including, but not limited to, the mandatory probationary period.
By letter to the Agency dated January 29, 2018, and received on February 4, 2018, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to provide her with a job offer by the January 11, 2017, and later did not reinstate her because it asserted she did not meet one of the pre-hiring requirements (a clean driving record). She requested that the Agency specifically implement its terms or reinstate her complaint.
Agency Decision
The Agency concluded that it had not breached the Agreement. The Agency reasoned that "all stipulations in the Settlement Agreement were executed." The Agency acknowledged that the job offer email was sent one day late. The Agency reasoned that the email was sent to Complainant with a Contingent Job Offer on January 12, 2018, and that Complainant had not shown any harm by the delay in issuing the offer. The job offer was for a City Carrier Assistant (CCA) position and had eligibility requirements which included Complainant having a documented driving history for at least two years that met the Agency's driving suitability requirement. The parties disagree as to whether she met the clean record driving qualifications.2 The Agency stated that Complainant did not get her license renewed after a suspension until June 16, 2016. The Agency reasoned, therefore, Complainant would not be eligible for a driving position until June 16, 2018, "which makes [her] ineligible for the CCA position offered to [her] on January 12, 2018. As such, the Agency concluded it had fully complied with the terms of the settlement agreement.
This appeal followed. On appeal, Complainant maintains that the Agency breached the contract by refusing to perform, did not act in good faith, and committed fraud in the inducement of the contract. Complainant also asserts that the Agency has liability under the doctrine of promissory estoppel, because Complainant signed the contract in reliance on the Agency's promise to reinstate her and she waived her rights to continue pursuing her EEO claims. As a result of relying on the Agency's promise, Complainant was injured, because she lost the benefit of the bargain. Complainant asks that the Agency be held to the Agreement, wherein the Agency agreed to reinstate Complainant and it did not provide a definite date for doing so. Further, Complainant argues that the Agency should have reinstated Complainant on June 16, 2018, and that she should receive damages for the losses naturally arising from the refusal to reinstate her.
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).
Here, we find that a plain reading of the agreement indicates that the Agency had two separate obligations of relevance. First, the Agency agreed, in provision THIRD 1(a), to reinstate Complainant. Second, under provision THIRD 1(b), the Agency agreed to extend a job offer by January 11, 2018, contingent on Complainant meeting certain pre-hire qualifications, including the clean driving record requirement. We determine that a fair reading of these two provisions indicate that the Agency had an ongoing obligation under the agreement to reinstate Complainant to employment, although the effective date of the reinstatement was contingent on her meeting the pre-hiring qualification requirements. The only pre-hiring requirement at issue here is the clean driving record rule, and both parties agree that Complainant met that requirement by no later than June 16, 2018. Therefore, we conclude that the Agency had an obligation to reinstate Complainant to employment under the terms of the agreement effective on June 16, 2018. While the Agency argues that Complainant had to meet the pre-hiring requirements by the date the agreement was executed (or at the least by its January 12 offer date), we disagree that such a term is contained in the plain language of the agreement. We note, for example, that provision THIRD 1(b), which addresses the pre-hiring requirements, only sets a "tentative" date for Complainant's reinstatement - leading to the conclusion that she was to be reinstated once she met the requirements.
As such, we find that the Agency has not complied with its obligation to reinstate Complainant once she met the relevant pre-hiring requirement concerning her driving record as of June 16, 2018. She is now entitled to reinstatement as of June 16, 2018, along with the recovery of any lost benefits, including back-pay with interest.
CONCLUSION
We find that the Agency breached the January 10, 2018 Agreement. Accordingly, we REVERSE the Agency's Breach Decision and REMAND the matter in accordance with the ORDER below.
ORDER (C0618)
The Agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall reinstate Complainant to employment at the Postal Service retroactive to June 16, 2018.
2. In accordance with our finding that the Agency breached its obligation to reinstate Complainant as of June 16, 2018, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to the terms of the Agreement and 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision was issued. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via Fed SEP a final compliance report 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 and his / her representative.
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 tends 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 alterthe 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
September 26, 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 Complainant's representative noted that in calculating the period of a license suspension, the regulations at 516.512 states that the Agency should "use the date of the actual violation that precipitated the suspension, rather than the beginning or ending date of the suspension to establish time frames for disqualification." Complainant argues that because the violation occurred in 2014, the disqualification period ended before the execution of this Agreement.
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