Barrett V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 26, 20180120180333 (E.E.O.C. Sep. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barrett V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120180333 Agency No. 1F-968-0010-16 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated October 11, 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 at the Agency’s Main Plant facility in Honolulu, Hawaii. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On June 9, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (3) Postal Service will make all reasonable efforts to make Payment within approximately eight weeks after Postal Service counsel’s receipt of this fully executed Agreement. The Payment checks will be broken down as follows: (a) $4,000.00 will be made payable to [Complainant], and represents non-wage compensatory damages. Postal Service will not withhold from this amount, although 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. 0120180333 2 it is understood between the parties that this payment may be subject to tax and will be reported to the Internal Revenue Service; (b) $2,000.00 will be made payable to [Complainant] and his attorney, and represents attorney’s fees. Postal Service will not withhold from this amount, although it is understood between the parties that this payment may be subject to tax to both Counselee and his attorney and will be reported to the Internal Revenue Service for each payee for the entire amount; (c) [Complainant] is solely responsible for any penalties assessed against [Complainant] and will indemnify and hold harmless Postal Service for any penalties assessed as a result of its tax treatment of the Payment, whatever that might be; (d) For purposes of administration, the Payment check is to be mailed to the Postal Service’s counsel. Thereafter, Postal Service counsel will mail the Payment check in the amount of $4,000.00 to Complainant at his mailing address to be provided and will mail the Payment check in the amount of $2,000.00 to [Complainant’s] attorney at the address to be provided; and (e) Postal Service agrees to the following non-monetary payment: a. Postal Service will credit [Complainant] with 100 hours of sick leave; and b. Training on dignity and respect in the workplace will be required to be completed within one year from the date of the signed settlement agreement to be provided by the Postal Service to management in the Automation Unit 333 located at 3600 Alolele Way, Honolulu, Hawaii 96820. By letter to the Agency dated September 6, 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 failed to credit Complainant with 100 hours of sick leave. Complainant added that the Agency’s failure to credit his sick leave required him to take leave without pay (LWOP) and spend $800.00 of his own money. Complainant acknowledged that he received the monetary payment and attorney’s fees. In its October 11, 2017 FAD, the Agency concluded that the settlement agreement did not provide a specific date or pay period in which Complainant would be credited the 100 hours of sick leave. The Agency further noted that the settlement agreement did not have any provisions that provided monetary payment for delay of payment or credit of leave. The Agency purported that, at the time, Management and Accounting Services were working to credit Complainant with sick leave, but had experienced common errors in the back-pay process. According to the Agency, documents were submitted for processing of Complainant’s sick leave on August 26, 2017. However, due to errors and an Accounting Technician’s absence, as of October 6, 2017, crediting of Complainant’s sick leave was still in process. As such, the Agency concluded that there had been no breach of the settlement agreement. 0120180333 3 CONTENTIONS ON APPEAL On appeal, Complainant’s attorney contends that Complainant would not have entered into the settlement agreement if the agreement clearly stated that the Agency could unilaterally decide when the 100 hours of sick leave would be credited. Complainant’s attorney noted that several attempts were made to rectify the alleged breach and that the Agency’s failure to comply with the settlement agreement resulted in emotional stress and monetary damages for Complainant. 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, provision (3)(e)(a) obligated the Agency to credit Complainant with 100 hours of sick leave. The settlement agreement did not, however, specify a time frame for performance with respect to crediting the sick leave. Absent specified time frames for performance, the Commission expects that the terms of a settlement agreement will be implemented within a reasonable period of time. Frazier v. Secretary of Air Force, EEOC Request No. 01A21146 (April 17, 2003). Moreover, “time is not ordinarily of the essence in a contract unless made so by express stipulation or unless there is something connected with the purpose of the contract and the circumstances surrounding it which makes it apparent that the contracting parties intended that the contract must be performed at or within the time named.” Garzino v. Dep’t of the Army, EEOC Appeal No. 0120072847 (Sept. 27, 2007) (training not provided within one-year period required by settlement agreement did not constitute a breach), quoting from Am. Jur. 2d Contracts § 471. After careful review of the record, we find that the circumstances surrounding the Agency’s delay in crediting Complainant’s sick leave cannot be considered unreasonable. Moreover, in February 2018, Complainant reported that the Agency credited him with the 100 hours of sick leave on December 2, 2017, within six months of the execution of the settlement agreement. We do not find that the record supports a finding that the Agency unduly delayed crediting Complainant’s leave. As such, we do not find that the Agency breached the settlement agreement. 0120180333 4 CONCLUSION Accordingly, we AFFIRM the Agency’s finding that it did not breach of the terms 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. 0120180333 5 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 September 26, 2018 Date Copy with citationCopy as parenthetical citation