U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randee D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120151078 Agency No. 4B-105-0011-14 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated December 3, 2014, finding that it was in compliance with the terms of the June 11, 2014 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 On June 11, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 1. Every Friday beginning June 13, 2014, until such time as [Complainant] may decide it is no longer necessary, [Complainant] and [Supervisor, Vehicle Maintenance] will together review on the computer [Complainant's] clock rings, including higher level pay to be sure they are correct. If either party is absent then they will meet the next workday that both are present.2 Complainant also alleged that she was subjected to ongoing harassment and retaliation concerning her work assignment, work hours, and that the supervisor shook his finger in her face.3 By letter to the Agency dated September 9, 2014, Complainant alleged that the Agency was in breach of provision 1 of the settlement agreement. Specifically, Complainant alleged that the supervisor only provided her with one printout of her clock rings and pay since the signing of the instant settlement agreement. In its December 3, 2014 final decision, the Agency found no breach of provision 1. Specifically, the Agency noted that the Supervisor, Vehicle Maintenance stated that on Friday, July 11, 2014, he met with Complainant in his office to review her clock rings from June 13, 2014. The supervisor stated that since July 11, 2014, Complainant has refused to come into his office so they could review her clock rings to make sure they were accurate. Complainant, on appeal, states "although it is not written in the agreement that the supervisor, [supervisor], will supply a written copy of the complainant's clock rings, the complainant submits that management's agent, [supervisor] has a duty to supply an employee a copy of clock rings at the request of the employee in the normal course of business." Further, Complainant states that the supervisor "orally agreed, after the settlement agreement, to supply [Complainant] with a printed copy of her clock rings and to meet on Monday's instead of Friday's to review [Complainant's] clock rings. The purpose of the change of date for review of the clock rings was to provide [Complainant] a full week's view of clock rings." The instant appeal followed. ANALYSIS AND FINDINGS 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 that the Agency complied with the terms of provision 1 of the settlement agreement. Provision 1 of the agreement provides for an affirmative Agency obligation to assure that every Friday beginning June 13, 2014, until such time as Complainant may feel it is no longer necessary, the supervisor and Complainant would review Complainant's clock rings and higher level pay on the computer to make sure they are accurate. The record contains a copy of the supervisor's affidavit dated November 24, 2014. The supervisor stated that on Friday, July 11, 2014, Complainant came to his office and "together we reviewed her clock rings from June 13, 2014. Since that date, [Complainant] has refused to come into the supervisor office to review her clock rings. Reviewing them on her computer is not advisable because her desk is in the open office are and there would be no privacy. On Friday July 18, 2014, when I asked [Complainant] to come to the office to review her clock rings, she refused and said she wanted to do it on Mondays. As the settlement said the reviews would be on Fridays, I did not agree to move them as I did not want to breach the agreement. Since then there have been no reviews because [Complainant] refuses to come into the supervisor's office." Complainant alleged that that the intent of the parties was that the supervisor would provide her with a print-out of her clock rings and that on Mondays, she and the supervisor would review the clock rings to make sure they are accurate. However, provision 1 merely states that every Friday starting June 13, 2014, until such time as Complainant may decide it is no longer necessary, she and the supervisor would review her clock rings and higher level pay on the computer to make sure they are accurate, and that if either party is absent then they will meet the next workday that both are present. The supervisor stated that on Friday, July 11, 2014, he and Complainant reviewed her clock rings from June 13, 2013 but ever since she has refused to come into his office to review her clock rings. If Complainant had wanted her and the supervisor to review the clock rings on Mondays and the supervisor provide her print-outs of her clock rings, she should have included it as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987). Accordingly, the Agency's determination that it was not in breach of provision 1 of the June 11, 2014 settlement agreement is AFFIRMED. 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), 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, 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 (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 January 5, 2016 __________________ 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 The settlement agreement also provides for a named management official to meet, when necessary, with the union president to avoid any possibility of having to provide information on Complainant to another party. This provision is not at issue in the instant case. 3 The record reflects that the Agency processed Complainant's harassment and reprisal claims in a separate complaint identified as Agency Case No. 4B-105-0023-14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151078 2 0120151078 6 0120151078