0120180939
03-30-2018
Roy F,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roy F,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120180939
Agency Nos. 4B000000116, 4B070010816, & 4B070011417
DECISION
Complainant timely appealed to the Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's January 17, 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 complaint, Complainant worked as a Manager, Post Office Operations ("POOM"), EAS-23, at the Agency's Northern New Jersey ("NNJ") District Office in Edison, New Jersey.
In late 2015 and early 2016, Complainant filed three EEO complaints with the Agency, alleging discrimination on the bases of sex (male), race (African-American), color (black) and age (born in 1962). The complaints were consolidated as they all related to Complainant's demotion from Manager, Human Resources ("HR Manager"), EAS-25 [HR Manager, EAS-25] for the Northern New Jersey (''NNJ") district, to an EAS-20 Operations Support Specialist at the NNJ Networks Distribution Center ("NDC"), effective March 19, 2016.
On July 14, 2016, Complainant requested a hearing before an EEOC Administrative Judge ("AJ"). (EEOC Hearing No. 520-2016-00284X). The assigned AJ dismissed Complainant's complaint during the pre-hearing stage after Complainant and the Agency resolved the matter by entering a settlement agreement ("the Agreement") on October 19, 2017.
In relevant part, the Agreement provides:
(2) On December 24, 2015 Complainant was issued a "Notice of Proposed Demotion to PS Level-04 Bargaining Unit Position, Craft to be Determined," ("Proposal Notice"), and on March 11, 2016 Complainant was Issued a "Letter of Decision on Notice of Proposed Adverse Action" ("Letter of Decision"). The Letter of Decision [demoted Complainant, reducing his] in grade-level and pay from [HR Manager, NNJ District, EAS-25] to an EAS-20 Operations Support Specialist at the NNJ NDC.... The Agency shall rescind the Proposal Notice and the Letter of Decision and expunge them from Complainant's record to the extent permitted by law. The PS Form 50, "Notification of Personnel Action" notifying Complainant of his reduction in grade-level and pay will also be rescinded and expunged from his e-OPF.
(5) The Agency agrees to accept Complainant's request... for a voluntary reduction in grade-level and pay, to the position of Manager, Post Office Operations ("POOM"), EAS-23, effective Saturday October 28, 2017.
(6) ...although Complainant is being "returned" to his [HR Manager, EAS-25] position... he will not physically return to, nor perform the tasks of a district HR Manager. Rather, Complainant shall perform the duties and responsibilities of an Operations Support Specialist, EAS-20..."
In accordance with the Agreement, Complainant was reassigned to the position of POOM, EAS-23, effective October 28, 2017. Meanwhile, a vacancy for Complainant's previous position, HR Manager, NNJ District, EAS-25, was posted, so Complainant applied on November 4, 2017. Based on his professional experience, and the Agency's processing of his POOM reassignment, Complainant believed the Agency had sufficient time to have already completed its obligation under Provision 2 to expunge disciplinary actions from his record.
In a letter dated December 13, 2017, the HR Manager, Northeast Area ("H1") informed Complainant that his application for his previous position HR Manager, NNJ District, EAS-25, would not be considered. H1 explained that "as part of the Settlement Agreement and Release [Complainant] signed on October 18, 2017 [Complainant] agreed that [he] would not return to that position, and instead [he] agreed to a voluntary placement into a [POOM] EAS-23, position for NNJ, effective October 28, 2017."
On December 18, 2016, Complainant contacted the Agency attorney ("A1") who negotiated the Agreement, and learned that the Agency had not complied with Provision 2. A1 promptly responded, acknowledging the oversight and contacting H1 to ensure Complainant's disciplinary actions had been expunged.
On December 27, 2017, Complainant contacted the Agency, alleging that it breached the Agreement when:
1. The Agency failed to expunge the disciplinary actions identified in the Agreement from his files, and he had to notify the Agency's Attorney to obtain compliance; and
2. H1 informed Complainant that because he entered into the Agreement, his application for the position of HR Manager, NNJ District, EAS-25, would not be considered.
On January 17, 2018, the Agency issued a final decision concluding that no breach occurred. 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).
Claim 1 - Substantial Compliance
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 Covington v. United States Postal Serv., EEOC Appeal No. 01913211 (Sept. 30, 1991).
Complainant established that the Agency failed to comply with Provision 2 until December 19, 2017. However, there is no evidence to support the delay was due to bad faith, and the Agency offered sufficient evidence that within a day of Complainant placing A1 on notice, it took appropriate steps to cure the breach. See, e.g. Tshabalala v. Dep't of Agriculture, EEOC Appeal No. 01A10068 (Jul. 6, 2001) (finding substantial compliance and no evidence of bad faith by the agency, citing its "immediate" attempts to cure the breach, and its responsiveness to the complainant). The record contains an affidavit from the Human Resources Analyst in the Northeast Area Office ("H2") verifying that the disciplinary actions (December 25, 2015 "Proposal Notice" and March 11, 2016 "Letter of Decision") were removed from Complainant's personnel file on or around December 19, 2017, per H1 and A1's instructions. The record also contains copies of two PS Form 50s, one indicating Complainant's downgrade to the position of POOM, EAS-23 from Manager, Human Resources, EAS-25 was voluntary, and the other showing Complainant's position prior to the downgrade as Manager, Human Resources, EAS-25, thereby omitting Complainant's brief stint as an Operation Support Specialist, EAS-20, in accordance with Provision 2.
Complainant's contention on appeal, that but for the Agency's failure to timely comply with Provision 2, he would have been able to compete for his prior position of HR Manager on November 4, 2017, as "nothing in [his] history would have prevented [him] from applying as [he] met all the eligibility requirements of the posting" is also unsupported. H1's December 13, 2017 letter explains that Complainant would not be considered for the position because he entered into the Agreement, contradicting Complainant's allegation that he was disqualified from consideration because of the disciplinary action still viewable on his personnel file.
Thus, assuming a breach of the settlement did occur with respect to Claim 1, the Agency has cured that breach and Complainant has not shown that he suffered harm from the Agency's delay in compliance. See Beers v. Dep't of the Treasury, EEOC Appeal no. 01A04975 (Oct. 17, 2001).
Claim 2 - Disqualification from Competing for Previous Position
Claim 2 arises from H1's interpretation of the Agreement, as she expressed in a December 13, 2017 letter to Complainant, that Provision 6 disqualifies him from competing for his previous position as HR Manager, NNJ District, EAS-25. Complainant argues that he notified the Agency of this alleged "breach" by informing the selecting official, the NNJ District Manager, and A1, that H1 erroneously disqualified his application. He reasons that because the Agency did not make a selection until January 9, 2018, it had ample opportunity before then to "cure" the "breach" by allowing Complainant to compete with the other candidates and failed to do so.2
Under the "plain meaning" rule, discussed above, the Commission will adjudicate a breach claim based on the language articulated within the Agreement. After thorough review, we find that the Agency's interpretation of the language of Provisions 5 and 6 is correct. Here, Complainant applied for his former position (District HR Manager) within two weeks of signing the Agreement providing for his reassignment to the POOM position, and explicit language that he would not "perform the tasks of a district HR Manager." While the Agreement did not contain language concerning how long Complainant needed to wait following the reassignment before he could reapply for a district HR manager position, we conclude that the Agreement cannot be interpreted to allow him to apply directly for the position he agreed to be reassigned from in such a short time frame.
CONCLUSION
Accordingly, the Agency's final determination of no breach 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. 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 30, 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 We note that, on appeal, Complainant strenuously argues that Claim 2 constitutes breach of the Agreement and should not be processed as a separate complaint. However, the Agency has already initiated processing Claim 2 as a new EEO complaint (Agency No. 4B070005418), which it accepted for investigation on March 1, 2018 in accordance with 29 C.F.R. � 1614.105.
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