0120180934
05-30-2018
Yessenia H.,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
Yessenia H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120180934
Agency No. 4E680004417
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from a Final Agency Decision ("FAD") dated December 12, 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 PSE (or "Clerk") at the Agency's Processing and Distribution Center ("P&DC") in Norfolk, Nebraska.
On September 21, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve an EEO complaint in which Complainant alleged discrimination by the Agency. Relevant to the instant complaint is Provision 1 of the Agreement, which states:
[The Manager of Mail Processing Operations ("M1")] agrees to give a service talk to all clerks at the Norfolk, NE facility on according dignity and respect to each other, including the Zero Tolerance policy regarding harassment and gossip in the workplace.
On November 7, 2017, Complainant contacted the Agency in writing alleging it was in breach of the Agreement and requesting that the Agency reinstate her complaint.2
Specifically, Complainant alleged that M1 failed to give the service talk (also referred to in the record as a "standup talk") to all of the clerks. Instead, M1 gave only one talk to a small group of clerks, that included Complainant, and it was insufficient, as it did not stop the alleged coworker harassment that gave rise to her initial EEO complaint. As for the remaining clerks, Complainant alleges that M1 simply distributed copies of the Agency's "Zero Tolerance" policy for them to read. The Agency conducted an inquiry, determined that M1 met his obligations under Provision 1 of the Agreement, and issued a FAD finding that no breach occurred.
In a separate decision letter, the Agency addressed additional complaints Complainant timely raised regarding mediation and EEO processing related to the instant breach claim. The Agency determined, after an inquiry, that it fully complied with EEO policy and regulations.
Complainant appealed both the FAD and the decision letter to this Commission.
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 Agency supports its position that it fully complied with Provision 1 with a signed Declaration by M1 stating that he gave the required talks to all clerks in the facility in either a group setting or individually. However, M1's Declaration also states that "it was impossible to get all employees together into groups due to schedules and operational needs... at times the talks were handed to employees to read over." After the clerks read the "talks," M1 asked if they had any questions and if they did he answered them. M1 then asked each clerk to sign a form to indicate that they read and understood the materials. As he obtained the signatures, M1 states that he also "instructed the clerks that no harassment of any type will be tolerated from that point going forward towards other employees [and that] any complaints will be investigated and [dealt] with through the disciplinary procedures." The record includes copies of the materials M1 provided, and a list of names and signatures, which the Agency identifies as proof that all clerks received the 'talk" in accordance with Provision 1.
Complainant disputes M1's account, but argues that even if M1's Declaration was accurate, individual talks or providing materials for a clerk to read did not fulfill his obligation under the terms of Provision 1. Complainant further disputes that M1 gave the talk in accordance with Provision 1 because whatever action he took was "ineffective." Complainant also provided the Compliance Specialist ("CS") with the names of seven clerks who told her that they had not received the talk from M1, and alleged that multiple unidentified coworkers of one of these clerks also did not receive the talk. CS declined to contact these clerks because their names and signatures were on the statement confirming that they received and understood the talk.
Applying the Plain Meaning Rule, we find Provision 1 of the agreement created an express obligation that M1 provide a service talk to all clerks at the facility. The settlement agreement, however, is devoid of any reference to constraints being placed upon M1 regarding how he provided the talk. If Complainant wanted to ensure that M1 only provided the talk in a group setting, she should have included such a provision as part of the Agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (Mar. 4, 1987).
Even if Complainant could demonstrate that the plain meaning of the term "service talk" required M1 to address a group, as opposed to individuals, we find that the Agency established substantial compliance with Provision 1. See, e.g. Tshabalala v. Dep't of Agriculture, EEOC Appeal No. 01A10068 (July 6, 2001) (finding no breach, as the agency demonstrated its efforts to comply with a settlement agreement, provided evidence of substantial compliance and showed no indication of acting in bad faith). M1 completed his obligation under Provision 1 within a month of entering the Agreement, the materials he provided to each clerk thoroughly addressed the topics specified in Provision 1, and, significantly, M1 verbally reminded each clerk about the Agency's policies, the consequences of violating the Agency's zero tolerance policy, and offered further discussion. We find no evidence that M1's solution of meeting in both groups and individually to fulfill his obligation under Provision 1 was made in bad faith, given his stated challenges presented by shiftwork and managerial responsibilities.
Based on the signature confirmations in the record, Complainant's assertion that M1 simply passed out written materials without giving a talk to each employee is not supported by the evidence. Complainant's argument that M1 breached Provision 1 of the Agreement because the talks were "ineffective," fails establish breach because the alleged coworker harassment she cites to support her allegation is a "subsequent act of discrimination," discussed further below.
Dissatisfaction with Complaint Processing
In relevant part, our guidance provides that "a complainant must raise any dissatisfaction with the processing of his or her complaint before... the agency takes final action on the complaint." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("EEO MD-110"), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013). When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. See EEO-MD 110, supra.
Complainant timely raised her allegations of dissatisfaction with the investigation and mediation processes for the instant complaint prior to filing. Specifically, she alleged that the Compliance Specialist ("CS") refused to investigate evidence that would prove her breach allegation when CS said, in an allegedly sarcastic tone of voice, that she would not contact the list of clerks Complainant provided to confirm that they did not receive the talk. Complainant also alleged that CS refused to investigate her harassment and retaliation allegations arising from the breach. Regarding the mediation process, Complainant contends that the mediator demonstrated bias in favor of the Agency by, among other things, providing personal advice, rushing Complainant, and speaking to the parties separately.
The Agency's Letter of Determination properly addressed Complainant's concerns, and provided a thorough explanation of its inquiry. The record supports that CS acted within her discretion when she opted not contact the clerks on Complainant's list because the Agency already provided her with signature confirmation that all clerks received the talk. As discussed above, not all clerks received the talk in a group setting, as Complainant expected, therefore it is not unreasonable that Complainant would have received conflicting answers. We note that this Commission has long accepted a roster with signatures of attendees as sufficient proof that they received required training. See MD-110 Appendix Q. As for Complainant's allegations about the mediation process, the Agency provided a signed affidavit by the mediator with explanations for the alleged actions. Moreover, Complainant's legal counsel was present and raised no objections during or after the process. We find no further action necessary.
Subsequent Acts and New Claims of Discrimination
Under 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. On appeal, Complainant raises new claims of reprisal and harassment. Specifically, she alleges that based on the Agency's alleged poor handling of the instant complaint, Management has since "felt safe" to retaliate against her and "set up traps for her in order to fire her." As the matter before us is limited to the issue of whether the Agency is in breach of the September 21, 2017 Agreement, these allegations will not be adjudicated in this decision. If Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
We remind the Agency that under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. �1614.101; Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998).
CONCLUSION
Accordingly, the Agency's finding that it was not in breach of Provision 1 of the Agreement 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
May 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 Complainant's November 7, 2017 Notice also alleged breach of Provision 3, but the Agency subsequently complied. Complainant has not raised the matter on appeal, nor does she dispute that the Agency complied with the remaining two provisions of the Agreement.
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