U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlena H,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120173018 Agency No. 1F-968-0007-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated August 17, 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 Manager, Field Maintenance (FMO) at the Agency's facility in Honolulu, Hawaii. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 10, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (1) Starting March 22, 2017, the Acting Manager of Maintenance (Manager) will convene weekly meetings with the staff for information sharing, discussion and feedback from the staff. (2) Upon completion of her EWP Assignment, [Complainant] will resume her FMO Duties. In August 2017, Complainant informed the Agency of alleged breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Manager has not convened weekly meetings as agreed upon in the settlement agreement. As to provision (2) of the settlement agreement, Complainant asserted that she has not resumed her FMO Manager duties. In its August 17, 2017 FAD, the Agency concluded that it did not breach the agreement. As to provision (1), the Agency held that the Manager had conducted 14 staff meetings and continues to conduct meetings since the agreement was signed. The Agency noted that the agreement did not expressly state that the meetings would occur when Complainant was at work. However, the Agency conceded that the meetings have not taken place exactly every seven days, the Manager was making an effort to conduct the weekly meetings to comply with the settlement agreement. As to provision (2), the Agency indicated that Complainant has been returned to her FMO duties as of May 2, 2017. The crux of Complainant's claim regarding her FMO duties is that she no longer has a staff car and keys to that car. The Agency noted that a maintenance car is assigned to maintenance and that a car is not part of the FMO duties. The Manager also stated that no one else is being assigned Complainant's duties except for when Complainant is out on leave, they have another employee who can take her place at that time. Therefore, the Agency concluded that it did not breach provision (2) of the settlement agreement. CONTENTIONS ON APPEAL Complainant noted that in her position, she had a staff car assigned to her for the past 12 years to conduct her field visits. The keys and the staff car were taken from her for use by another Agency employee. She asserted that the other employee does not conduct daily field visits to the offices in the field as she does. She also asserted that she was not to do any EWP reviews in the field with Postmasters. As such, she claimed that the Manager was taking her away from her FMO duties. Complainant noted that she was returned to her position but the Manager told her that she would no longer conduct EWP reviews in the field with Postmasters. As to the weekly meetings, Complainant challenges the dates cited by the Manager and the Agency as "staff meetings." Complainant argued that the Manager has not met her obligation to holding meetings. As such, Complainant claimed that the Manager was in breach of the settlement agreement. 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). In the instant case, Complainant has asserted that the Agency has not met its obligations as stated in the settlement agreement. She noted that the Manager has not held weekly meetings with staff. The Agency issued its final determination stating that it spoke to the Manager about the meeting provision of the settlement agreement. The Agency relied on the Manager's assertion that she has tried to conduct weekly meetings and she held 14 meetings. However, the Agency conceded that the Manager was not meet the obligation of weekly meetings in its letter of determination. We note that the Agency failed to provide any statement from the Manager directly to the Commission and just relayed information in the letter of determination. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Therefore, based on the Agency's concession, we find that it breached provision (1) of the settlement agreement. Further, as to provision (2), Complainant asserted that she has not been provided with her FMO duties. As to the specific FMO duties, Complainant was primarily concerned with the fact that she had the keys of a staff car removed from her which she used to conduct her field visits and EWP reviews in the field with Postmasters. In addition, Complainant indicated that she had conducted EWP assessments and provided training to all new custodians in the field office in the Honolulu District. As such, she claimed that the Manager failed to return her to these duties following her EWP assignment. In support of her claim, Complainant provided a copy of the position description which provides overall information regarding the position but does not specify which duties Complainant performed or the duties to which she should have resumed. In response, the Agency pointed to information provided by the Manager who indicated that the car is not part of Complainant's duties and EWP assessments and training were Complainant's collateral duties which Complainant had performed. However, the Manager has since been assigned these duties to other employees. Again, we note that the Agency failed to provide a copy of a statement. In reviewing the settlement agreement, we determine that this provision is too vague and general to have allowed for a meeting of the minds between the parties. Specifically, we find that the settlement language that Complainant "will resume her FMO Duties" is too ambiguous. In this regard, we note the divergent interpretations by the parties with respect to what these terms mean. Complainant believed it meant that she was to return to the duties she had been performing. The Agency, on the other hand, stated that the Manager believed that these duties were not within Complainant's position description. Consequently, we find that there was no contemporaneous meeting of the minds between the parties and that the settlement agreement is void for vagueness. See Mullen v. Dep't of the Navy, EEOC Request No. 05890349 (May 18, 1989). When voiding an agreement, the parties are returned to the status quo at the time the agreement was entered. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's letter of determination and REMAND to the Agency for reinstatement from the point where processing ceased in accordance with the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to: (1) Resume the processing of this complaint from the point where processing ceased due to the settlement. The Agency shall acknowledge to Complainant that it has reinstated and resumed the processing the previously settled matter. Processing shall proceed in accordance with 29 C.F.R. Part 1614. (2) Send a copy of the Agency's letter of acknowledgment to the Compliance Officer as referenced below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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 January 12, 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 0120173018 2 0120173018