U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nida R,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120180325 Agency No. 6E-000-0002-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency, dated September 25, 2017, finding that it complied with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. §§ 1614.402; .405, .504(b). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative Assistant at an Agency Office in Seattle, Washington. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 14, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part: (1) This settlement agreement ("Agreement") is in full and complete settlement of all claims made in the above-referenced complaint. It is further agreed that this Agreement resolves any claims, complaints or appeals which [Complainant] has, or could have, filed or initiated up to the date this Agreement is fully executed, in any forum (including, but not limited to, ELM 650, EEOC, MSPB, and District Court), relating to her employment with the [Agency]. (2) In exchange for the terms in paragraph 1, the parties further agree as follows: a. The Notice of Proposed Adverse Action - Removal (hereafter, Proposed Removal), dated September 15, 2016 and issued to [Complainant] for "Unacceptable Conduct", is reduced to a downgrade to the position of General Clerk, VMF (Job #71344851) at the Seattle Vehicle Maintenance Facility, effective April 1, 2017. The position is on Tour 3, with work hours of 1600 - 0050, with nonscheduled days of Saturday and Sunday. [Complainant's] seniority will be set with the effective date of placement in accordance with Article 12.2.B of the National Agreement between the American Postal Workers Union and the [Agency], as she was outside the craft for more than one year. [Complainant's] salary will be that of a P 06, Step K, which is $54,431.00. [Complainant] will be subject to all of the laws, rules, contracts, policies, and regulations applicable to other [Agency] employees. . . . (4) This Agreement is in full and complete settlement of all claims made in the above-referenced complaint, which include an allegation of age discrimination. [Complainant] affirms that she has read and clearly understands this Agreement and is waiving rights and withdrawing a claim brought under the Age Discrimination in Employment Act. [Complainant] understands that she is not waiving any rights or claims that may arise after this Agreement is executed. [Complainant] acknowledges that she is receiving valuable consideration in exchange for this Agreement. By email to the Agency, dated July 20, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency placed her in a General Clerk, VMF (Job #71348851) position effective April 1, 2017, but, in June 2017, announced the position as vacant and seeking applicants. Complainant stated that her supervisor informed her that announcement of the position made her status "unassigned regular." Complainant provided a copy of a Step 2 Grievance Appeal Form, dated March 15, 2017, in which the American Postal Workers Union (APWU) alleged "Management is making a unilateral decision to assign APWU bargaining unit work to [an Executive & Administrative Step Schedule] EAS non-bargaining unit employee that is being demoted." APWU stated that the Agency violated the collective bargaining agreement, and needed to post the vacant position for bid by craft employees. Also, Complainant provided a copy of the General Clerk, VMF (Position No. 71348851) vacancy announcement issued June 24, 2017. In its September 25, 2017 final decision, the Agency concluded that it had not breached the March 14 agreement. The Agency stated that the union grieved Complainant's placement in Position 71344851, so to settle the grievance, the Agency agreed to post the position for bid. The Agency stated that it did not remove Complainant from the position or adjust her pay, workhours, job duties, nonscheduled days or the like during the posting period. The Agency stated that it assumed the position would go "unbid" as it had in the past, which it did and Complainant remained assigned to the position. The Agency stated that it informed Complainant that she could become "unassigned," but that did not occur. The Agency added that it did not process a personnel action to change Complainant's status, and that if someone else was awarded the Clerk position, it would have created "an identical, mirror" position for Complainant.2 The instant appeal from Complainant followed. On appeal, Complainant stated that the Agency breached the settlement agreement by allowing her to be categorized as an "unassigned regular" which could have resulted in her being placed in a different position. Complainant asked for reinstatement of her complaint from the point processing ceased. 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 Defense, 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 record shows, on March 14, 2017, Complainant and the Agency entered into a settlement agreement. Relevantly, in lieu of pursuing removal, the Agency agreed to reassign Complainant to a General Clerk VSF (Job #71344851) position at its Seattle Vehicle Maintenance Facility, effective April 1, 2017. The record shows that the Agency placed Complainant in said position as agreed. Shortly after the parties' agreement, the incumbent union filed a grievance alleging the Agency violated the collective bargaining agreement when it placed Complainant in the Clerk position. It requested the Agency post and accept applications for a Job #71344851 vacancy. The Agency posted the vacancy, but received no bids for the position. During the vacancy posting, Complainant remained in her Clerk position but was told that she would become an "unassigned regular" if someone else was awarded the Clerk position. Complainant remained in the Clerk position from April 1, 2017, without change to status, pay, duties, workhours, nonscheduled days, etc. Based on the circumstances herein, we find the Agency did not breach the March 2017 settlement agreement. If the Agency subsequently removes Complainant from the Job 71344851 Clerk position or changes the terms of the position against Complainant's will, then Complainant may at that time contact the EEO Director pursuant to 29 C.F.R. § 1614.504(a) to file a breach claim. Such did not occur in this instance. CONCLUSION Accordingly, we AFFIRM the Agency's decision finding no breach of the settlement agreement. 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 (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 March 20, 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 The record contains a Notification of Personnel Action (PS Form 50), effective April 1, 2017 (dated April 4, 2017), assigning Complainant to Position 71348851 - General Clerk MVF. The record also contains a PS Form 50, dated September 2, 2017, showing that Complainant remained in the General Clerk VMF position at that time. Also, the Agency noted, during the General Clerk VMF posting process, Complainant bid on and was selected for a Secretary position. The Agency stated that it selected Complainant effective August 5, 2017 and she was supposed to start the new position August 7, 2017. The Agency stated that there were concerns about Complainant's ability to bid to the Secretary position because it is higher level so, ultimately, Complainant remained in position 71348851 from April 1, 2017. The Agency noted that it is attempting to re-award Complainant the Secretary position. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180325 5 0120180325