Phillis W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 7, 2018

0120172395 (E.E.O.C. Mar. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Phillis W.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120172395

Agency No. 4E-852-0216-16

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated June 16, 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 a MCSO2 at the
Agency’s Main Post Office in Phoenix, Arizona. Believing that the Agency subjected her to
unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On December 2, 2016, Complainant and the Agency entered into a
settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part,
that Complainant would receive:

• Annual leave reinstatement of forty hours.

• Compensatory damages will be paid as 1099 income within 60 days in the amount
of $2,500.

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 record does not contain a definition for “MCSO.”
0120172395

2

• Attorney fees will be paid at $7,500 within 60 days.

• [Agency] anticipates within 60 days a different MCSO vacancy in Phoenix for
which counselee would be eligible to apply and be selected.

• Upon counselee’s next promotion she shall be provided a 10% raise.

On April 24, 2017, Complainant alleged that the Agency was in breach of the settlement
agreement and requested that the agreement be upheld. Specifically, Complainant alleged that
the Agency failed to comply with the provision of the agreement concerning the MCSO vacancy
in Phoenix.

In its June 16, 2017 final decision, the Agency determined that it had not breached the settlement
agreement. The Agency asserted that there was a lateral request submitted that would have
opened the anticipated MCSO position, but the request was denied. The Agency stated that as a
result the position referred to in the agreement did not come open. According to the Agency,
management indicated should the position open Complainant would still be eligible to apply and
possibly be selected. The Agency noted that the settlement agreement does not state there will
be a vacancy but instead states that a vacancy is anticipated and Complainant would be eligible
to apply and be selected. The Agency therefore reasoned that the agreement was not breached.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the reason why the anticipated MCSO vacancy did not
open is unknown and that an investigation is necessary to determine whether the Agency acted in
good faith. Complainant maintains that resolving this complaint was based upon a clear term
that provided her an opportunity to be considered for promotion without the imposition of
prohibited criteria. Complainant argues that this remedy was clearly intended to restore her to
the position she should have been in when she applied for the MCSO position.

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).
0120172395

3
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).

In the instant case, the record reflects that the provision of the settlement agreement at issue
states that the Agency anticipates within 60 days a different MCSO vacancy in Phoenix will be
available for which Complainant would be eligible to apply and be selected. The agreement does
not guarantee Complainant that the MCSO vacancy will be available within 60 days. An
anticipation of the position being available then does not equate to certainty. We find that this
provision of the agreement was not breached when the MCSO vacancy did not become available
within 60 days. As the settlement agreement was based on other consideration as well, we find
that the agreement is enforceable.

CONCLUSION

The Agency’s determination that no breach occurred 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.
0120172395

4
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

March 7, 2018
Date