Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120140455 Agency No. 1G-334-0028-13 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated September 23, 2013, finding that it was in compliance with the terms of a July 9, 2013 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On July 9, 2013, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued through the EEO complaint process. The July 9, 2013 settlement agreement provided, in pertinent part, the following Agency obligation: The parties agree on or before July 23, 2013 [Manager] shall submit a request to Human Resources requesting permission to post the "Guidelines on Religious Exercise and Religious Expression in the Federal Workplace" and the URL reference for such document. Such request shall specifically request the document and URL reference be made via posting on the workroom floor or other area open to employees. In the event Human Resources denies the request to post the above referenced guidelines (either the cover sheet or in its entirety) and/or the URL, then [Manager] shall request and obtain another suitable posting which specifically addresses the subject matter and references the guidelines by title or the URL. By letter to the Agency dated August 20, 2013, Complainant alleged breach of the instant settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to post EEOC Regulations document, "The Guidelines on Religious Exercise and Religious Expression in the Federal Workplace." In its September 23, 2013 letter of determination, the Agency found no breach. The Agency determined that the Manager had timely contacted the Human Resources representative and made the request to post the "Guidelines on Religious Exercise and Religious Expression in the Federal Workplace," ("Guidelines") or a suitable substitute. The Manager was informed that he may post three substitute postings, which were: 1) Equal Employment Opportunity is the Law; 2) Workplace Harassment - Know Your Rights!; and, 3) Rules and Regulations Governing Conduct on Postal Property. The Manager proceeded to post these on the bulletin board as agreed. The instant appeal followed. On appeal, Complainant argues that the Agency failed to post documents that met the criteria set forth in the agreement. Complainant alleged that the documents "DO NOT reference the "Guidelines on Religious Exercise and Religious Expression in the Federal Workplace," [and thus] DO NOT fulfill [the Agency's] obligation according to the mediation settlement." (emphasis in original). 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). The Agency has not established that it is in substantial compliance with the terms of the settlement agreement. We acknowledge that the Manager asserted that there was compliance with the settlement agreement by the obtaining and posting documents referencing discrimination and harassment in the work place. However, this posting does not specifically reference the Guidelines by title or by URL. We emphasize that the instant settlement agreement specifically required the Agency to either post the specific Guidelines and the URL, or a suitable posting which specifically referenced the Guidelines or URL. The Agency's substitute postings only addressed in general terms, the subject matter of no discrimination on the basis of religion. However, we again emphasize that the Agency substitute posting does not make express reference to the Guidelines or provide the appropriate URL as specifically provided for in the terms of the subject settlement agreement. Accordingly, the Agency's finding of no breach of the July 9, 2013 settlement agreement is REVERSED. These matters are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER Within 30 calendar days of the date this decision becomes final, the Agency is ORDERED to take the following action to comply with the provisions of the July 2013 settlement agreement: The Agency either shall post "the Guidelines on Religious Exercise and Religious Expression in the Federal Workplace" and the URL reference for this document. If the Agency's Human Resources Department denies this action, the Agency then shall request and obtain another suitable WORD which specifically addresses the subject matter and references the guidelines, by title or the URL. The posting of these documents shall be either on the workroom floor, or in an area open to employees. The Agency is further ordered to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision," and which shall include supporting documentation verifying that corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations January 15, 2015 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Anthony Cascio 11620 NW 33rd St Sunrise, FL 33323 U.S. Postal Service (Southeast) NEEOISO - Appeals U.S. Postal Service PO Box 21979 Tampa, FL 33622-1979 __________________ Date ______________________________ Compliance and Control Division ARP Companion Case Checklist Complainant Agency Appeal/Request/Petition No. Anthony Cascio USPS (SE) 0120140455 OPEN CASES Appeal No. IMS Status Related (Yes/No) Actions Taken n/a CLOSED CASES Appeal No. IMS Status Related (Yes/No) Actions Taken 0120101024 No OFO affirmed CLASS ACTION CASES Appeal No. IMS Status Related (Yes/No) Actions Taken n/a Fang, Han January 6, 2015 Attorney Date 2 0120140455 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140455 6 0120140455