0120150651
03-17-2016
Giselle W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Giselle W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120150651
Agency No. 4G-330-0200-13
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated October 24, 2014, finding that it was in compliance with the terms of a July 9, 2013 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, 2013, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been resolved through the EEO complaint process. The July 9, 2013 settlement agreement provided, in pertinent part, that:
1. All parties agree to meet w/the 8127 & reconcile the pay that is owed to [Complainant]. The corrected pay request will be submitted for payment per ped 8.2
2. [Complainant] will keep copies of all 8127's.
3. [Acting Supervisor] will do & submit copies of all 8127's per pay period.
4. [Agency official] will contact [name] & ascertain the following information & request the following:
(a) process for handling 8127's &
(b) update on [Complainant's] payroll situation.
5. Management agrees to give [Complainant] one day off w/full 8.6 pay and this shall be taken w/in the next 6 months (Jan 9, 2014).
By PS Form 2564-A "Information for Pre-Complaint Counseling" dated September 18, 2014 and her affidavit dated "9/ /2014" to Agency, Complainant alleged breach. Specifically, Complainant alleged that on August 22, 2014, the Acting Supervisor told her that because she "was sitting down waiting for parcels, she was going to change my starting time for 9:00, maybe 9:30, because in that way she doesn't have to pay me." Complainant further alleged that the Acting Supervisor did not treat her with dignity and respect when she asked about being paid on time from a submitted 8127 by not answering her question.
Further, Complainant stated "since pay period #12, not only that [Acting Supervisor] hasn't been paying me for durations every time I have an express. So, I asked her if she was going to charge everyone else and she said 'no'. Then, I asked her about my 8127 that I already signed and never got a payment, she didn't answer me. I saw the manager right after that [Manager] and I explained to him; he said he was going to asked her but never told me what happened."
In its October 24, 2014 final decision, the Agency found no breach. The Agency found that the Acting Supervisor stated that management complied with the terms of the instant settlement agreement. The Acting Supervisor further stated that following the signing of the agreement, she has submitted Complainant's 8127's in a timely manner. The Acting Supervisor stated, however, she was late submitting Complainant's 8127 during Pay Period 19 due to her father's illness. Furthermore, the Acting Supervisor stated that she has no control over the amount of time it takes Payroll to process and pay the submitted 8127's.
The record contains a copy of the Acting Supervisor's affidavit dated October 20, 2014. The Acting Supervisor stated that following the signing of the settlement agreement, she submitted Complainant's 8127 within the proper pay periods. The Acting Supervisor, however, acknowledged that she "was late with a few PP. due to my father was in hospice care and he passed away." Specifically, the Acting Supervisor stated that the Complainant's 8127 was submitted "10 days late."
Complainant, on appeal, argues that she wants "proof from management or [Acting Supervisor] dates of [submissions] of all 8127 and dates of payments of all the 8127. I feel that if all the 8127 were [submitted] in a timely manner by [Acting Supervisor] why have all payments of money own to me have not being receive. For example I had payment for Pay period #23 2013 after numerous attempts by me reminding [Acting Supervisor]. I have payment 8 months 1/2 after so May or June 2014. Management didn't follow thru my payroll situation as mention on my settlement agreement line 4."
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, we note that provision 3 of the agreement provides for an affirmative Agency obligation to assure that the Acting Supervisor submit copies of Complainant's 8127's per pay period. The record contains a copy of the Acting Supervisor's affidavit dated October 20, 2014. Provision 4 provides for an affirmative Agency obligation to assure that a named Agency official will contact an Agency official concerning the process of handling 8127's and an update on Complainant's payroll situation.
However, the Commission is unable to determine whether the Agency complied with the provisions 3 and 4 of the settlement agreement. We note in its instant final decision, the Agency, whose analysis was confined solely to provision 3, relied on the findings of its inquiry concerning Complainant's allegation of breach when the Acting Supervisor untimely submitted her 8127 for Pay Period 19. We note that the record does not contain any documentation indicating that Complainant was eventually paid following the untimely submission of the 8127.
Further, we note that the record does not contain a copy of the Acting Supervisor's or other management officials' affidavits and/or other evidence supporting the determination of compliance of provision 4. As such, we shall remand this matter to the Agency for evidence showing whether it has complied with provisions 3 and 4 of the subject settlement agreement.
Accordingly, the Agency's final decision 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 the responsible Agency management officials' affidavits and relevant documents indicating whether they complied with provisions 3 and 4 of the settlement agreement.
2. The Agency shall issue a new final decision regarding whether it is in compliance with provisions 3 and 4 of the July 9, 2013 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
March 17, 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 A fair reading of the record reflects that an "8127" is a type of Agency supplemental pay document.
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