U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hershel B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120181539 Agency No. 4F-956-0028-15 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a letter of determination by the Agency dated March 13, 2018, finding that it was in compliance with the terms of a November 5, 2015 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On November 5, 2015, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued in the EEO process. The November 5, 2015 settlement agreement provided, in pertinent part, that the Agency agrees to the following: 1(a) $7,500 will be made payable to Complainant and represents non-wage compensatory damages. The Postal Service will not withhold from this amount, although it is understood that this payment will be reported to the IRS. .......... 2(a) The Postal Service agrees that it will provide Complainant with contact information for the Manger of Learning Development and Diversity, and that Complainant may contact this individual regarding issues related to his impairment, interpreter needs, and similar related issues. Currently the Manager of Learning Development and Diversity is [Manager] who can be reached by email at [Manager's email] or by phone at [Manager's phone number]. (b) The Postal Service acknowledges that Complainant is required to be provided with an in-person qualified sign language interpreter during significant safety instruction as described in Management Instruction EL-670-2013-6, Providing Communication Accommodations to Employees and Applicants Who Are Deaf or Hard of Hearing. The Postal Service agrees to instruct Management of this obligation to ensure future compliance. (c) The Postal Service acknowledges that Complainant is required to be provided with an in-person qualified sign language interpreter during investigatory interviews that may reasonable lead to discipline and formal discussions between Complainant and his or her supervisor concerning job performance evaluations, corrective actions, or conduct as described in Management Instruction EL-670-2013-6, Providing Communication Accommodations to Employees and Applicants Who Are Deaf or Hard of Hearing. The Postal Service agrees to instruct Management of this obligation to ensure future compliance. (d) The Postal Service agrees that when required to provide an interpreter by this agreement. Postal Service policy, or law, the Postal Service will take reasonable steps to provide the interpreter in a timely manner. (e) The Postal Service agrees that any disciplinary action related to the claims in this case and the events of January 6, 2015, will be removed from Complainant's file and may not be cited in any future discipline.2 By letter to the Agency on or around November 16, 2017, Complainant alleged breach of provisions 2(b) and 2(c). Specifically, Complainant alleged that in approximately January 2016, an equipment for Video Remote Interpreting (VRI) services was set up in his workplace "although I had not agreed to use VRI in lieu of an in-person interpreter. The settlement agreement clearly stated that an in-person interpreter would be provided [emphasis in its original]."3 Further, Complainant alleged that he had not been accommodated with an interpreter for stand-up meetings and his investigative interview relating to a September 27, 2017 vehicle accident. In its March 13, 2018 letter of determination, the Agency found no breach. The Agency stated that after receiving Complainant's allegation of breach, the Manager, Learning, Development and Diversity conducted an inquiry. According to the Manager, she visited the Royal Oaks Station and confirmed the functionally of the VRI equipment as it was functional. The Manager also stated that Complainant's supervisor was provided with training regarding the use of the VRI on January 18, 2018. The Manager stated that on February 27, 2018, she met with Human Resources, the Law Department and management from Royal Oaks Station in which instructions and training were provided to management to comply with the terms of the settlement agreement and the Agency policies regard communication accommodation. Moreover, the Manager also stated that on March 5, 2018, an Operations Program Specialist examined the VRI equipment at the Royal Oaks Station, updated the unit's IP address, ran a test call and informed it was fully functional. 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, the Agency did not comply with provisions 2(a) and 2(b). Provisions 2(a) and 2(b) provide for an affirmative Agency obligation to assure that Complainant is provided with an in-person qualified sign language interpreter during safety talks, investigative interviews, job performance evaluations, corrective actions or conduct. We note that there is nothing stated, implied or written in the settlement agreement indicating that Complainant would be provided with VRI sign language interpreter in lieu of in-person qualified sign language interpreter. When we find a breach, we have two choices: specific performance or reinstatement of the underlying complaint. If Complainant chooses to reinstate his complaint, he would have to return any monetary relief which he has obtained. If he chooses specific performance, we require that the parties be held to the terms of the settlement agreement. Therefore, we order that Complainant be provided the option of specific performance of the enforceable provisions or reinstatement of his complaint. The Agency's letter of determination finding no breach is REVERSED. This matter is REMANDED to the Agency for action consistent with the ORDER below. ORDER (00610) Within fifteen (15) calendar days of the date of this decision, the Agency shall notify Complainant of his option to either: 1. to return to the status quo ante, returning any benefits received pursuant to the November 5, 2015 agreement and having his underlying complaint reinstated, or 2. having the terms of the settlement agreement be specifically enforced. A copy of the Agency's notice to Complainant, regarding his options, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying Complainant that the terms of the agreement will be specifically enforced and evidence of such performance, must be sent to the Compliance Officer as referenced below. 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 August 27, 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 When Complainant did not hear from the Agency regarding his breach allegation, he filed an appeal with the Commission, on April 12, 2016. In response, the Agency claimed it did not receive any breach allegation from Complainant. The Agency stated that it had paid Complainant the $7,500 in compensatory damages. The Agency, however, did not address the provisions relating to access to in-person interpreters. On appeal, the Commission remanded the matter to the Agency for further processing. Complainant v. United States Postal Service, EEOC Appeal No. 0120161450 (July 14, 2016). Following the Commission's decision, the Agency issued a determination as to whether it has complied with the November 5, 2015 settlement agreement in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal. 3 VRI is a system where an interpreter appears on a television screen to provide communication services between hearing-impaired parties and parties with hearing. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181539 6 0120181539