0120161840
10-13-2016
Phoebe O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Phoebe O.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161840
Agency No. 4G330003216
DECISION
Complainant timely appealed to this Commission from the Agency's March 28, 2016 decision 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 was a Union Steward at the Agency's Weston Post Office facility in Weston, Florida.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Complainant named the Supervisor of Customer Services ("S1"), who was her first level supervisor, and the Postmaster ("S2"), her second level supervisor, as the responsible management officials in her claim. On December 15, 2015, Complainant, S1, and S2 entered into a settlement agreement ("the Agreement") to resolve the matter. Under the Agreement:
[S1] agrees to meet with [Complainant] at 10 a.m. or as soon as practical the same day, when [Complainant] needs to present any grievance-related matter. [S2] agrees to meet with [Complainant] on Tuesday, January 5, 2016, at 11 a.m. to discuss the end-of-quarter overtime equitability. Henceforth, [S2] will meet with [Complainant] approximately mid-quarter to discuss overtime equitability. Management will make every effort to make [Complainant] equitable in overtime during the quarter.
On January 29, 2016, the Agency received a letter from Complainant alleging that S1 and S2 breached the Agreement when:
1. On January 5, 2016, Complainant and S2 did not meet as agreed;
2. On unspecified dates, S1 stopped signing her document requests and told Complainant that she was too busy to stop and sign Complainant's requests;
3. On January 7, 25, and 26, 2016 and on February 3, and 4, 2016, S1 failed to meet with Complainant; and
4. On unspecified dates, S1 would not meet with Complainant regarding grievance related matters, and instead referred her to another supervisor or S2.
The Agreement included meetings between S2 and Complainant as a means of addressing Complainant's allegation that she was not equitable in overtime compared to her coworkers. On January 5, 2016, the agreed upon date of the first meeting, Complainant was off, and she and S2 dispute the reasons they did not meet the following day, when both were available. Complainant also tried unsuccessfully to reschedule for January 7, 2016, then notified the Agency of the alleged breach later that month. On March 10, 2016, S2 contacted Complainant in writing to meet the following week in reference to the Agreement. They met on March 14, 2016 to discuss end of quarter equity they would have discussed on January 5, 2016 (October, November and December), and again on March 16, 2016 to discuss overtime equity for the current quarter (January, February, and March). Complainant participated in the meetings, but alleges S2 intentionally delayed scheduling them to avoid providing her with equitable overtime.
The Agreement was also intended to ensure Complainant's access to Agency Management. As Union Steward, Complainant advised and represented other employees on time-sensitive grievance matters, which required her to regularly request Management's approval to engage in union activities on official time and to request documents. The volume of grievances at a given time was unpredictable, and sometimes, Complainant requested meetings from S1 on a daily basis. Shortly after entering the Agreement, S1's responsibilities significantly expanded when the Agency added more postal routes and employees. When S1 could not meet with Complainant immediately or within the day, she would direct Complainant to another supervisor, as all of the supervisors were authorized to approve Complainant's union-related requests. In these instances, Complainant would be given the "run around" by multiple supervisors before she could obtain approval for her requests.
After conducting an inquiry, the Agency determined that no breach occurred.
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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
The Commission has found substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. See Hoyland v. Dep't of the Navy, EEOC Appeal No. 0120103271 (Dec. 2, 2010). The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009) citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274(Apr. 25, 1996); Sortino v. U.S. Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996) citing Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993).
Claim 1
Under the Agreement, Complainant and S2 would meet on January 5, 2016 "to discuss the end-of-quarter overtime equitability," in reference to the quarter ending December 31, 2015. As alleged in Claim 1, the meeting did not take place; however, we find the Agency substantially complied with the Agreement when S2 rescheduled the meeting for March 14, 2016. On appeal, Complainant alleges she was harmed as a result of the delay because S2 was allegedly aware that she did not have overtime equitable to that of her coworkers, but did not meet with her. We disagree; the plain language of the Agreement only requires S2 to "discuss" equitable overtime awarded during the previous quarter. As Complainant was not owed overtime under the Agreement and it is undisputed that the topics specified for the January 5, 2016 meeting were discussed during the rescheduled meeting on March 14, 2016, we find the Agency substantially complied with the Agreement.
Assuming arguendo that S2 did breach the Agreement, as alleged in Claim 1, we find the Agency has cured that breach and for the reasons discussed above, complainant has not shown that she suffered harm from the agency's delay in compliance. An agency has 35 days from the receipt of a complainant's allegation of breach to resolve the matter. The Commission has interpreted this provision as allowing the agency the opportunity to cure any breach that may have occurred. See 29 C.F.R. � 1614.504(b); Covington v. United States Postal Serv., EEOC Appeal No. 01913211 (Sept. 30, 1991); Choudhary v. United States Postal Serv., EEOC Appeal No. 0120071396 (July 25, 2007). In the instant complaint, the Agency received Complainant's allegation on January 29, 2016. According to Complainant, on or around February 25, 2016, the Agency management official conducting the breach inquiry contacted Complainant and "tried to get [her] to agree to have another date" for the meetings with S2, but Complainant declined.
On appeal, Complainant further alleges that S2 breached the Agreement by scheduling their "mid-quarter" meeting two weeks before the end of the quarter, too late for her to make equitable overtime for the quarter. This is a new allegation concerning a provision of the Agreement that is not at issue in the complaint before us, so it will not be adjudicated in this decision. See � 1614.504(b), supra. If she has not done so already, Complainant may raise her new breach claim in a separate complaint by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
Claims 2, 3, and 4
The Agreement provides that S1 will meet with Complainant "at 10:00 a.m. or as soon as practical the same day." We are not convinced by Complainant's allegations in Claims 2 through 4 that S1 breached the Agreement by refusing to meet with her, or instead directing Complainant to speak with another supervisor or S2. According to the record, Complainant met with S1 regarding grievances on at least seventeen occasions between December 2015 and March 2016. S1's alleged refusals to meet with Complainant in Claims 2 and 3, did not constitute breach because in those instances, S1 lacked "practical" availability at the time of Complainant's request. S1's lack of "practical" availability is supported by her expanded workload, and the timing of Complainant's requests, which she usually made after 10:00 a.m., when S1's schedule provided fewer "practical" opportunities to meet. The Agreement does not require S1 to grant all of Complainant's meeting requests.
As for Claim 4, there is no provision in the Agreement prohibiting S1 from asking Complainant to obtain approval or discuss a grievance matter with another authorized management official when she is unavailable to meet. Complainant attempts to support her argument by alleging that when S1 refers her to another authorized management official, she "gets the run around" because whatever supervisor she was referred to inevitably asked if Complainant had asked S1 for approval yet, or redirected Complainant to a different supervisor or S2. We find Complainant is describing an inconvenience, not a breach. Significantly, there is no evidence that S1's alleged actions harmed Complainant or undermined the purpose or effect of the Agreement. It appears Management rarely (if ever) denied Complainant's requests to engage in union activity on official time. In documentation submitted by Complainant, only a few of her requests for union time or documents were approved more than one day after the date of request.
CONCLUSION
Accordingly, the Agency's finding that it was not in breach of the Agreement is AFFIRMED.
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
October 13, 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.
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