U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeanie P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120150898 Agency No. 4C080010114 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 12, 2014, 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 Howell Post Office facility in Howell, New Jersey. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 7, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (1) The grievance involving AWOL will be dropped and [Complainant] will be paid using sick leave. (2) When [Manager] addresses [Complainant], there will be another person, of [Complainant's] choosing present, who is available, and they will speak privately to the extent possible. (3) [Complainant] and [Manager] will speak to another in a tone of mutual respect. By letter to the Agency postmarked October 8, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. The Agency asked Complainant to clarify her allegations and, on November 3, 2014, Complainant alleged that the Manager spoke to her without a person of her choice present, and in a demeaning manner, and gives dates of August 27, 2014 and September 17, 2014. In its December 12, 2014 FAD, the Agency concluded it was not in breach of the agreement. It noted it had complied with term 1. As to term 2, the Agency noted that Complainant had filed an EEO complaint regarding harassment by the Manager. The Agency found that the Manager has spoken to Complainant twice and someone was present. The Agency also stated that the breach allegations were untimely raised because Complainant waited until October 24, 2014 to raise them. The Agency found term 3 to be void for lack of consideration. 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). As to timeliness, we find the breach claim was timely raised. Complainant raised her initial breach claim in a one paragraph statement that was postmarked October 8, 2014. Although the Agency asked for clarification, that did not render her October 8, 2014 claim untimely. Rather, she appropriately responded by providing further information regarding the actions of the Manager. In the instant case, we find that the Agency provided evidence that it had fully complied with provision 1. As to provision 2, Complainant has alleged that on two separate occasions the Manager approached her on the work floor and spoke to her in a demeaning manner without a person of her choosing present. In his responding affidavit, the Manager confirmed that he has spoken to Complainant two times since the agreement went into effect. He stated that on these occasions "at least one [other] employee was present." We note that the Manager did not confirm that the other person present during these conversations was of Complainant's choosing, as provided in the agreement. As such, we find that the Agency has failed to establish that it has fully complied with the terms of provision 2.2 Given that we find that the Agency has not established compliance with provision 2, Complainant is given a choice - to either reinstate her underlying complaint settled by the agreement or require specific performance of the agreement from this point forward. If she chooses to reinstate the underlying complaint, the entire agreement will be voided, including any benefit she already gained under provision 1 (she will lose the sick leave she was provided). As such, we are remanding the matter for Complainant to determine how she wants to proceed. The Agency's determination that it was in full compliance with the terms of the settlement agreement is REVERSED. ORDER Within 15 days of the date this decision becomes final, the Agency will contact Complainant and request that she choose whether she wants her underlying complaint reinstated (in which case she will lose the sick leave she was provided under the agreement) or whether she wants the Agency to specifically comply with all the terms of the agreement, including provision 2. 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 (M0815) 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), 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, 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 December 23, 2015 __________________ 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 recognize that the Agency has asserted that Complainant has also filed a separate EEO complaint on this matter. Complainant is permitted to maintain both this new complaint and her breach claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150898 2 0120150898