U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hedy B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120160323 Agency No. 4K-300-0094-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision (FAD), dated September 17, 2015, 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 Postal Support Employee (PSE) Clerk at the Agency's Ellenwood Post Office facility in Ellenwood, Georgia. On February 18, 2015, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that: (1) [Complainant] agrees to transfer to another location in the Atlanta district as soon as possible; (2) [The named management official] (OIC at Ellenwood) agrees, but states that she will only be able to leave once a replacement has been found and trained. By letter to the Agency dated August 12, 2015, Complainant alleged that the Agency was in breach of the settlement agreement. She requested that the Agency specifically implement its terms. Complainant alleged that a year has passed and the Agency failed to allow Complainant to transfer, even though a replacement was found and trained. Complainant states that she told the OIC that she wanted to go to Crown Road. The OIC said OK, but to give her until July 31, 2015 and she would make it happen. On July 31, 2015, Complainant determined that the agreement had been breached because it was her understanding that she would be leaving by that date and the OIC had not released her. In its September 17, 2015 FAD, the Agency concluded that the settlement agreement had not been breached. The Agency acknowledged that a replacement was brought in to the Ellenwood Post Office, but stated that she was not fully trained since the replacement did not pass either the window or scheme trainings. The OIC stated that that the transfer had not occurred because she "had not been presented with a transfer request to either approve or deny", and "since [Complainant] had not found another facility that has agreed to accept her transfer request." CONTENTIONS ON APPEAL On appeal, Complainant states that her breach claim should be sustained because a replacement was found and trained, as required by the Agreement. She asserts that the Agreement did not specify the type of training to be done or impose any requirement that Complainant find another office as a prerequisite to her transfer. Complainant also appears to be raising new allegations of reprisal. 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). We find the Agreement to be valid and binding. In the instant case, the parties agreed that Complainant would receive a "transfer to another location in the Atlanta district [which] should take place as soon as possible." The only condition was that a replacement be found and trained. A replacement was found and was trained. The Agreement did not state that the replacement would have to pass a certain test or master any specific skills. The Agreement also did not state that Complainant was required to submit a request in writing, specify the location to which she wanted to transfer and arrange for approval of the transfer. For these reasons, we find that Complainant provided sufficient evidence to support Complainant's claim that the Agency breached the Agreement. When we find that a breach has occurred, the Commission has two options. We can reinstate the complaint or order specific performance. In this case, Complainant seeks specific performance. Accordingly, we grant Complainant's request. We order the Agency to execute the transfer to the Crown Road station or other location within the Atlanta District. We also order the Agency to provide evidence that it has carried out the terms required, as stated below. Finally, the Commission has held that claims of reprisal or subsequent acts of discrimination are to be processed as a separate complaint. Should Complainant desire to raise or pursue other claims in the EEO process and has not already done so, we advise her to contact an EEO Counselor regarding any new claims. CONCLUSION Accordingly, we REVERSE the Agency's decision and we REMAND the matter to the Agency to effectuate compliance. ORDER The Agency is ORDERED to take the following actions: 1. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall transfer Complainant to another acceptable location within the Atlanta district. If there is a question as to the location, the Agency shall transfer Complainant to the Crowns Road location. 2. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall provide affidavits and evidence to document whether it has complied with the Agreement provisions 1 and 2. 3. Within sixty (60) days of the date this decision becomes final, the Agency shall supplement the record by providing this Office and Complainant with a status update on Complainant's continued employment. The Agency should include in that record whether Complainant remains an employee at the same level of employment with the Agency and whether she has received any disciplinary or other adverse actions against her since the entry of the subject Agreement on February 18, 2015. A copy of the Agency's notice of processing and documentation must be sent to the Compliance Officer as referenced below. 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 March 18, 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 0120160323