0120152764
02-16-2017
Shanice C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shanice C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120152764
Agency No. 4E800014706
DECISION
Complainant timely appealed to this Commission from the Agency's August 4, 2015 Letter of Determination, which found 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 Mail Processing Clerk at the Agency's Grand Junction Mail Processing Center in Grand Junction, Colorado.
On May 11, 2006, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve an EEO matter. The provision of the Agreement at issue, Term 1, states:
"[Complainant] will remain with the current days off and same rotation as [her husband]. This is temporary until a permanent solution can be crafted."
The Agreement also provides that "any alleged breach arising out of the implementation of or compliance with this settlement agreement must be reported in writing to the [Agency's] EEO Office within 30 days of the date of the alleged breach."
On or around January 15, 2015, Complainant notified the Agency, alleging that it breached Term 1 of the Agreement, because it never crafted a "permanent solution" that would allow her and her husband to work during the same schedule. According to Complainant, management further breached the Agreement by intentionally acting to keep her and her husband from working on the same rotation and schedule, based on the following instances:
1. On July 25, 2014, the Agency issued a letter to her husband, changing his days, hours, and position status (from "assigned" to "unassigned" regular employee);
2. Effective October 4, 2014, she was forced to bid on different hours in order to remain with the same work schedule as her husband;
3. On December 9, 2014, her husband received another letter, again changing his days, hours, and position status;
4. On December 13, 2014, she and her husband both received notice that they were unassigned, forcing them to bid, effective January 15, 2015;
5. On January 12 & 26, 2015, she learned that temporary Postal Support Employees ("PSE"), were scheduled preferred assignments prior to regular employees; and
6. On January 15, 2015, she was initially told that she could not keep the relief clerk's hours, but was subsequently allowed to do so.
In the years since Complainant entered into the Agreement, rather than rely on the Agency to craft a permanent solution, both she and her husband proactively used the bidding process, including accepting less desirable schedules, to maintain the same rotation and days off. It appears that their schedules were consistent until Complainant's husband received the July 25, 2014 notice of his schedule and assignment change. Complainant alleges that management intended to separate her and her husband, but did not anticipate that they would both bid on the graveyard shift, which they were successfully awarded. They were able to work the same schedule for about two more months, then they received notice that their positions were to be abolished and they would be "unassigned," meaning they would have to bid again. Complainant states that she and her husband bid on the closest schedules available to them based on seniority, and in light of the alleged additional competition from PSE. Their new schedules were the same aside from three days when they worked different hours. Complainant initiated the instant breach claim after management denied her requests that it modify her schedule to match that of her husband and they began working the separate schedules.
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 (Dec. 9, 1996).
We have repeatedly found that where an individual bargains for a position without any specific terms as to length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. See Bax v. United States Postal Serv., EEOC Appeal No. 01A31921 (Jan. 15, 2004) citing Buck v. Dep't of Veterans Affairs, EEOC Appeal No. 01A12839 (July 6, 2001) (finding no breach where complainant was awarded a position with no specified time frame, in a settlement agreement, and over a year later, the position was reclassified and ultimately downgraded.) Further, the Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 29, 1991) (finding no breach where complainant was awarded a promotion in a settlement agreement that did not specify length of service and the Agency promoted complainant to a detail position that lasted 2 years.) Carter v. United States Postal Serv., EEOC Appeal No. 01A60569 (May 25, 2006); see also Johnson v. United States Postal Serv., EEOC Appeal No. 0120092081 (May 27, 2010) (finding no breach when, three years after Complainant was awarded a schedule specified in a settlement agreement, her position was abolished due to an agency realignment). Link v. Envtl. Prot. Agency, EEOC Appeal No. 0120100336 (May 2, 2011), reconsideration denied, EEOC Request No. 0520110527 (Sept. 22, 2011) (finding no breach where complainant was awarded a promotion in a settlement agreement that did not specify whether the promotion was permanent, and the agency temporarily promoted the complainant for five years before permanently converting him to a lower-level position).
In the instant case, Term 1 of the Agreement does not specify whether and for how long it will provide Complainant with the same schedule as her husband. Moreover, Term 1 identifies a total of one specific circumstance where the Agency guarantees Complainant the same rotation and days off as her husband, which is the temporary position Complainant held when she entered the Agreement. Nothing else in the Agreement, including the phrase "permanent solution" guaranteed a specific schedule let alone for nearly eight years. Circumstances have changed since the Agency committed to crafting a permanent solution, because Complainant is no longer in the same position as she was when she entered into the Agreement. She voluntarily bid on and moved to another position in 2007, releasing the Agency from its obligation to ensure her schedule stayed the same as her husband's pending a "permanent solution." See EEOC Appeal No. 0120081997 (May 30, 2008). We previously found that the Agency was not required to modify Complainant's schedule to fit her husband's for a position she voluntarily transferred into. Id. The "permanent solution" was based on circumstances when Complainant entered the Agreement, not eight years later.
On appeal, Complainant argues that because she and her husband were able to maintain the same schedule on their own, no breach occurred until the Agency allegedly made this impossible on January 10, 2015. We find the difference in Complainant's circumstances from when she entered the Agreement, along with the issues raised in the instant breach allegation preclude a finding of breach. Specifically, the Agreement does not make any reference to the Agency's obligations concerning job reclassification and schedule changes other than the temporary position in Term 1.
Accordingly, we AFFIRM the Agency's finding that no breach occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
February 16, 2017
__________________
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.
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