0120161087
04-19-2016
Adriene B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adriene B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120161087
Agency No. 1K-211-0021-15
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated January 5, 2015, finding that it was in compliance with the terms of a July 9, 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 July 9, 2015, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The July 9, 2015 settlement agreement provided, in pertinent part, that:
1. USPS will issue a Written Light Duty Assignment
2. See Addendum Attached - (2 pages)
Addendum to Settlement Agreement
..........
3. In exchange for the terms in paragraph 1. The parties further agree as follows:
a. The Postal Service will issue Counselee a lump sum of Two Hundred and Fifty Dollars and No Cents ($250.00) for compensatory damages. The Postal Service will not withhold any taxes from this payment. However the Postal Service shall report to the Internal Revenue Service the amount paid as required by law. The determination of Counselee's tax liability, if any, is a matter solely between Counselee and tax authorities.
b. The Postal Service agrees to re-credit 9 hours of annual leave to Counselee's annual leave balance by converting X hours of annual leave previously used by Counselee to paid administrative leave.
By letter to the Agency dated November 15, 2015, Complainant, through her attorney, alleged that the Agency was in breach of addendum provisions 2.a. and 2.b. Specifically, Complainant alleged that the settlement "has been breached by the Agency as the complainant has not received the $275.00 agreed to within the settlement agreement."2 Further, the record reflects that on December 14, 2015, Complainant's attorney left a voice mail message to the EEO Compliance Specialist stating that Complainant had not been re-credited with the nine hours of annual leave to her annual leave balance per the terms of the agreement.
In its January 5, 2015 final decision, the Agency found no breach of addendum provisions 2.a. and 2.b. The Agency stated that a Management Official acknowledged that he did not prepare or submit the appropriate pay adjustment paperwork for Complainant to receive the agreed $250.00 as he thought Human Resources was taking care of this matter. The Agency further noted while the Management Official was out of the office in training upon learning of the breach allegation and to avoid further delay in Complainant's receipt of the lump sum payment, the Manager, Distribution Operations, completed the required paperwork authorizing a lump sum payment of $250.00 as agreed per the terms of the settlement agreement.
The record reflects that the Manager, Distribution Operations submitted PS Form 8041 dated December 2, 2015, to the Postal Data Center for processing. The Manager, Distribution Operations also prepared a PS Form 8038 "Employee Statement to Recover Back Pay" requesting 9 hours of annual leave to be credited to Complainant's annual leave balance and sent it to the Postal Data Center for processing.
Complainant, on appeal, states "as of today, complainant still has not been paid nor has her annual leave been recredited. Complainant believes the breach was intentional and that it continues and we ask for immediate enforcement with interest from the date of the settlement."
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).
Upon review, we are unable to determine whether the Agency has complied with addendum provisions 2.a. and 2.b. of the settlement agreement. According to addendum provision 2.a. of the agreement, the Agency was to pay Complainant a lump sum in the amount of $250.00 while provision 2.b. provides an Agency obligation to credit 9 hours of annual leave to Complainant's leave balance. We acknowledge that the record contains copies of the requisite paperwork for Complainant's lump sum payment and 9 hours of annual leave to be credited to her balance. However, we note that, to date, there is no evidence in the record indicating that Complainant actually received her lump sum pay and that 9 nine hours of annual leave was credited to her annual leave balance. Therefore, we shall remand this matter to the Agency for evidence showing whether it has complied with the subject settlement agreement.
Accordingly, the Agency's finding that it is now in full compliance with the July 9, 2015 settlement agreement is REVERSED and the matter is REMANDED to the Agency for a supplemental investigation in accordance with the ORDER herein.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ORDERED to take the following action:
1. The Agency shall supplement the record with affidavits and/or documentary evidence indicating actual receipt by Complainant of the lump sum pay and 9 hours of annual leave was credited to her leave balance at issue.
2. The Agency shall issue a new final decision regarding whether it is in compliance with addendum provisions 2.a. and 2.b. of the July 9, 2015 settlement agreement.
A copy of the Agency's supplemental investigation and new final decision shall be provided to the Compliance Officer as referenced herein.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 Complainants 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
April 19, 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 Although Complainant identifies a payment due of $275.00, the settlement agreement expressly identifies an Agency obligation to pay $250.00.
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