0120180324
03-15-2018
Terica W,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
Terica W,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180324
Agency No. 4F900009617
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a Letter of Determination by the Agency dated October 11, 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 Letter Carrier at the Agency's Edendale Station facility in Los Angeles, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 3, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided that:
(1) Management agrees, based on Counselee's current medical restrictions to issue her a modified light duty job offer no later than close of business (COB), Saturday, March 4, 2017.
(2) Management agrees to refer the Counselee to DRAC [District Reasonable Accommodation Committee] no later than Saturday March 4, 2017. Counselee agrees to participate in the DRAC process and understands she will be referred to a DRAC meeting at a later date.
(3) The [Agency] agrees that a Manager Customer Services, [____________] will meet with [Complainant] for three private meetings over the next three months from the date of this agreement. The first meeting will occur in approximately two weeks and can occur on a date determined by the parties. The meeting will last at least fifteen minutes (and may last as long as the parties both agree). The purpose is to improve communication. Again, it is a separate, private meeting outside what [Complainant] is normally entitled to, for her benefit.
Complainant sought EEO Counseling on August 16, 2017 and completed an informal Counseling form on August 25, 2017, wherein she alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to refer her to the DRAC.
In its October 11, 2017 Letter of Determination, the Agency concluded there was no breach of the agreement. Specifically, the Agency found that Complainant's supervisor produced a copy of the DRAC form she was going to submit on March 10, 2017, but that Complainant told her doing so was no longer necessary and so she did not submit the referral. The Agency further found that a new referral was submitted on October 11, 2017.
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).
In the instant case, we find no breach of the agreement. The record contains a copy of the DRAC referral form dated March 10, 2017 with a handwritten note stating "agreed to DRAC, now saying not necessary will do work and want [sic] to come back full (illegible)." Complainant, however, denies that she told her supervisor the referral to DRAC was no longer necessary. Notwithstanding any dispute between the parties regarding whether or not Complainant rejected the DRAC referral on March 10, as claimed by the Agency, we note that the settlement agreement states that any breach must be brought to the attention of the Agency EEO Manager within 30 days of the alleged breach. In addition, we note that 29 CFR � 1614.504(a) also states that allegations of breach shall be brought to the EEO Director within 30 days of when the complainant knew, or should have known, of the alleged breach. The settlement agreement stated that Complainant should be referred to the DRAC "no later than Saturday March 4, 2017." Assuming that Complainant never told her supervisor that referral was no longer necessary, she did not raise her allegation of breach until August 25, 2017, which is beyond the 30-day limit. Her breach allegation is therefore untimely. Furthermore, considering that a referral was made on October 11, 2017, the Agency has substantially complied with the terms of the agreement.
CONCLUSION
The Letter of Determination 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 15, 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.
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