0120180377
03-23-2018
Dominique N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dominique N.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120180377
Agency No. 1J531005017
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's November 21, 2017 determination 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 Clerk (Level 6) at the Agency's Green Bay Processing and Distribution Center in Green Bay, Wisconsin.
On March 27, 2017, Complainant contacted an EEO Counselor, believing that the Agency subjected him to unlawful discrimination on the basis of disability (osteoarthritis), and initiated Agency No. 1J531005017. On April 7, 2017, Complainant signed a document indicating his decision to participate in the Agency's alternate dispute resolution process ("ADR"), per EEO Regulation 29 C.F.R. � 1614.105(f). By signing, Complainant confirmed that he understood ADR was voluntary, that the EEO complaints processing office had provided him with information on the mediation procedure, and that if his allegations were not addressed through ADR within 90 days, he could file an EEO complaint. On June 22, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter.
The June 22, 2017 Agreement contained the following four provisions:
1) Complainant's Form 2499 will be modified to meet current restrictions of [Complainant] on June 27, 2017.
2) Complainant's Form 2499 will again be revisited after July 13, 2017.
3) Complainant will be considered for overtime as long as there is available work within his restrictions; and
4) Complainant will be granted 8 hours of annual leave for being bypassed on President's Day Holiday 2017.
Below the provisions, in bold, italic font, the Agreement further provided:
This agreement constitutes a full and final settlement of all issues arising out of the subject matter of [Agency No. 1J531005017] and by signing this agreement, the counselee [Complainant] withdraws any and all pending EEO complaints and appeals relative to the subject matter of these complaints.
Complainant had a permanent medical restriction through the Department of Labor's Office of Workers Compensation ("OWCP") since 2008, as his osteoarthritis limited his manual work capabilities. However, the restriction did not limit the number of hours he could work. Complainant worked 40-hour weeks and regularly requested holiday and overtime hours, and was on the "Overtime Desired List." Complainant alleged that the Acting Plant Manager ("PM") denied his application to work on President's Day, yet "others who applied were allowed to work." Complainant also noted that he would do "exactly the same work" on holidays, as he did during his regular shift. Complainant further alleged, without providing additional dates, that he is "never allowed to work overtime ...despite the fact that the flat sorter machine [he] works on is run 6 days a week and [he] works on it for 5 days." Complainant alleges that PM essentially "punished" him for having a medical restriction, telling him "numerous times" that he was "not really disabled" and that if he decreased his medical restrictions, he may have more opportunities for overtime or holiday pay.
Complainant was initially happy with the outcome of the Agreement because he would be compensated for the President's Day holiday hours. Then, Complainant learned that by entering into the Agreement, he could no longer pursue prior similar allegations of denied holiday or overtime hours, even though he did not raise them during mediation. Likewise, Complainant, who recently underwent serious hand surgery, intended the Agreement as a means to address his Form 2499, which describes his modified job offer based on his restrictions, with PM, but he only received one Modified Job Offer dated July 25, 2017.
By letter to the Agency postmarked July 25, 2017, Complainant alleged that the Agency was in breach of Provisions 1 through 4 of the Agreement. Complainant requested reinstatement of his complaint instead of specific performance, alleging that the Agency did not provide sufficient time for him to prepare for mediation and "misled" him when he entered the Agreement.
In its November 21, 2017 FAD, the Agency concluded that it fully complied with the Agreement. The Agency also declined to reinstate Complainant's case, determining Complainant was not misled, as he had been fully advised of the mediation process, and understood entering the Agreement was a voluntary act. The instant appeal followed.
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). 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
Provisions 1, 2 and 3
Applying the plain meaning rule, the Agency met its obligations under Provisions 1 and 2, which were to ensure Complainant's Form 2499 medical restrictions were updated on June 27, 2017 (Provision 1), and "revisited" after July 13, 2017 (Provision 2). Complainant's argument that Provisions 1 and 2 also required PM to meet with him to discuss his Form 2499, relies on information that is not in the Agreement. Specifically, Complainant explains that first date, June 27, 2017 was based on his and PM 's mutual availability to meet, and the second date, "after July 13, 2017," referred to an upcoming doctor's appointment, which would provide Complainant with an update on his physical limitations. We find Provisions 1 and 2 to be devoid of any reference to meetings and new modified job offers. If Complainant wanted such constraints imposed on the Agency, they should have been reduced to writing as part of the agreement, and in the absence of a writing cannot be enforced. See Carter v. Dep't of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing Jenkins-Nye v. Gen. Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987).
Likewise, for Provision 3, the Agency demonstrated that it considered Complainant for overtime within his restrictions when it offered him an assignment where he earned two hours of overtime on July 26 and 29, 2017. Complainant described the assignment as highly "atypical" as it entailed checking IDs and preventing people from trespassing at an Agency facility 50 miles away while a convention was in town. Complainant argues that the Agency breached the agreement by failing to consider him for clerk overtime assignments, which he contends were available and within his restrictions during the relevant time frame. Yet, Complainant fails to offer any evidence that such work was available within his restrictions, and he denied the Agency's request for access to his OWCP file in order to determine what overtime assignments were available within his medical restrictions.
Provisions 1, 2 and 4
To the extent that Complainant alleges breach based on the timing of the Agency's compliance with Provisions 1, 2, and 4, we find sufficient evidence of substantial compliance. The Commission finds substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009) (finding a two-week delay in transfer of official letter of regret rather than letter of apology to be substantial compliance) citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274(Apr. 25, 1996)); Sortino v. United States Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996); Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993); see also Hoyland v. Dep't of the Navy, EEOC Appeal No. 0120103271 (Dec. 2, 2010) (finding that the Agency substantially complied with a Settlement Agreement in which it was to pay the complainant $3,000 within 90 days, when it paid the complainant within a month of notifying it that it was in breach and finding no harm or bad faith, as the delay was due to an administrative error). Here, the Agency provided affirmative evidence that it sought supplemental documentation from Complainant to determine what overtime and holiday assignments it could provide and in what form he wanted the compensation (annual leave). We note that during this time frame, Complainant was on sick leave, and retired on August 31, 2017 for health reasons. We find the delays Complainant references were due to delays in communication with Complainant, administrative processes, and ultimately, Complainant received the benefit of Provisions 1, 2, and 4 within a reasonable amount of time, indicating substantial compliance, not breach.
Alternately, Complainant appears to argue the validity of the Agreement, which he states he entered into as a result of being "misled" and due to his lack of legal experience. According to Complainant, the Agency duped him into signing away his right to pursue additional EEO claims of prior instances of denial of overtime and holiday pay on the basis of disability.2 Complainant entered into the Agreement believing it would only address the President's Day holiday hours and ensure consideration for future overtime opportunities. He did not intend to bar himself from raising additional EEO complaints on other instances when he was denied overtime or holiday hours. Complainant asks us to void the Agreement, allow him to return the consideration he received for Provision 4, and reinstate his initial EEO Complaint Agency No. 1J531005017.
In the Agreement, Complainant acknowledged "full and final settlement of all issues arising out of the subject matter of [Agency No. 1J531005017]." Agency No. 1J531005017 includes the allegations that Complainant is "not allowed EVER to work holidays due to disability [and he is] also never allowed to work overtime." The record indicates had ample notice of the consequences of entering into the Agreement, and as stated above, we find no indication of bad faith. We have previously held that if a settlement agreement is made in good faith and is otherwise valid, it will not be set aside simply because it appears that one of the parties had made a poor bargain. See Ingram v. Gen. Serv. Admin, EEOC Request No. 05880565 (Jun. 14, 1988). As Complainant was informed of his rights, and in accordance with the plain, unambiguous language of the Agreement, we see no reason to set this Agreement aside. Thus, Complainant is precluded from raising allegations about prior instances of denied overtime and holiday hours.
Subsequent Acts of Discrimination
Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. On appeal, Complainant alleges that on August 20, 2017, he was denied overtime when other employees were asked to stay, so he contacted the EEO Office, and timely submitted the pre-complaint documentation. Although he has proof of receipt, he believes his allegation was erroneously processed by the Agency as a response to a "spin off complaint."3 Therefore, if the Agency has not done so already, it must process this new complaint pursuant to 29 C.F.R. � 1614.105.
CONCLUSION
Accordingly, the Agency's finding that it was not in breach of the Agreement is AFFIRMED.
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 23, 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 As Complainant repeatedly mentions in the record that he can likely recover at least two years of back pay for previous instances where the Agency allegedly denied him overtime and holiday pay because of his disability, we remind Complainant that in order to recover back pay through the EEO process, he must first file a timely EEO complaint (under 29 C.F.R. � 1614.105(a)(1) complaints of discrimination should be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action).
3 Complainant references the November 22, 2017 Agency Response Regarding Allegation of Dissatisfaction with Processing of Pending Complaint, which we find properly addressed Complainant's spin off complaint regarding the mediation process.
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