Kellye C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019003308 (E.E.O.C. Sep. 18, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kellye C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 2019003308

Agency No. 4F-926-0147-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from an Agency final decision, dated April 15, 2019, finding that it was in
compliance with the terms of October 23, 2018 settlement agreement. See 29 C.F.R. § 1614.402;
29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. The Commission accepts the appeal.

BACKGROUND

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process.

On October 23, 2018, Complainant and the Agency entered into a settlement agreement to resolve
the matter. The October 23, 2018 settlement agreement provided, in pertinent part, that:

THIRD: Mutual Promises

1. Complainant agrees to accept the following monetary payment as the entire amount
due to Complainant from Postal Service:

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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(a) Postal Service agrees to convert 96 hours of sick leave used by Complainant
between August 4, 2018 to September 8, 2018 to Other Paid Leave (i.e. 08600 or
the functional equivalent);

(b) The Postal Service agrees to adjust up to 96 hours of sick leave used by
Complainant between August 4, 2018 to September 8, 2018 to Leave Without Pay
(LWOP) status (i.e. 049 or the functional equivalent). Complainant must, within
two weeks of the execution of this Agreement, alert the Postal Service as to how
many of the 96 hours of sick leave she wishes to have the Postal Service adjust to
LWOP.

By letter to the Agency dated March 11, 2019, Complainant alleged breach. According to her
March 11, 2019 letter, on October 23, 2018 Complainant informed the Agency that she wanted to
convert 52 hours of sick leave (SL) to LWOP, Code 49. In late November 2018, she received a
statement indicating the amount due was $921.49. Complainant and her representative, however,
believed the correct amount for 52 hours should have been $1,578.72. The Agency representative
responded that the statement amount was accurate. In December 2018, Complainant sent a check
for $921.49, and Complainant’s representative emailed the Agency to ensure that the leave was
coded as “049” LWOP. Complainant learned in January 16, 2019, upon reviewing her paycheck,
that only 40 hours had been bought back, and the leave was not changed to “OWCP LWOP”. It
still was recorded as SL. Complainant claimed that further efforts to communicate with the
Agency official went unanswered.

On April 15, 2019, Complainant again wrote to the Agency. Noting that, while “recent activity
by the [Agency] suggests a renewed effort to possibly comply” with the agreement, if the required
adjustments were not completed by July 31, 2019, she “will not be able to receive the wage
compensation from OWCP that was the object of the 52 hours of sick leave being bought back and
converted to Code 049 LWOP.” Complainant emphasized that “the entire reason for the
adjustment” was to allow her to request OWCP benefits, which must occur by July 31, 2019.

Meanwhile, on the same date, the Agency issued its final decision finding no breach. Specifically,
according to Postmaster [R]: a second adjustment was submitted for the 12 hours on or about
3/6/19”; she received a report reflecting Complainant was billed for $343.17; Complainant stated
that she had submitted a check for that amount on April 10, 2019; and that the invoices reflecting
the bought back hours would not have been generated if Complainant’s leave had not been coded
as OWCP LWOP. The Agency also stated that Postmaster R would provide Complainant with a
report showing the properly coded hours by May 10, 2019. Finally, the Agency observed that the
agreement did not include a time frame for completion of its actions.

Complainant filed the instant appeal. On appeal, she confirms receiving and paying a bill for
$343.17 for the remaining 12 hours. However, she maintains that the Agency still has not coded
her clock rings as “049 LWOP”, as purportedly assured in the Agency’s April 15, 2019 decision.
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In support of this matter, Complainant provides a copy of clock rings, printed on May 10, 2019,
for the relevant pay periods. Complainant argues that her early notification to the Agency, of its
errors, was simply met with “resistance, inaction, and ultimately refusal.”

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 (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, the Agency has not shown that it has complied with its obligations under the
October 23, 2018 settlement agreement. In contrast, Complainant has provided detailed evidence
supporting her narrative and illustrating her repeated, albeit unsuccessful, efforts to obtain
compliance from the Agency. Even in its final decision, the Agency asserts, without evidence,
that it has complied with the agreement. Instead, the Agency assures Complainant that a report
showing the conversion to 049 LWOP will be provided by May 10, 2019. However, the instant
record does not contain such documentation. Further, the Agency has not provided any
contentions on appeal2. Therefore, we find the Agency has breached the agreement.

Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the
complaint or 2) order specific performance. We note, however, that if a complaint is reinstated for
further processing, the parties must be returned to the status quo at the time that the parties entered
into the settlement agreement. This would require that Complainant return or forego any benefits
received pursuant to the settlement agreement. See, e.g., Armour v. Dep't of Defense, EEOC
Appeal No. 01965593 (June 24, 1997).

2 As for the Agency’s reference to the absence of a time limit, in its final decision, the Commission
has previously found that compliance must be achieved within a reasonable amount of time. See
Gomez v. Department of the Treasury, EEOC Appeal No. 05930921 (Feb. 10, 1994) (where time
frame for fulfillment of terms of settlement agreement is not specified, terms must be fulfilled
within a “reasonable” amount of time).

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Because Complainant has not expressed a preferred remedy, the matter is remanded to the Agency,
where it will provide Complainant with the option of specific performance or the reinstatement of
her underlying EEO complaint.

CONCLUSION

Accordingly, we find that the Agency breached the settlement agreement and the matter is
REMANDED to the Agency for further processing as set forth in the ORDER below.

ORDER

Within fifteen (15) calendar days of the date this decision is issued, the Agency shall notify
Complainant of her option to either:

(a) to return to the status quo prior to the signing of the December 9, 2015 settlement
agreement and having her underlying complaint reinstated, or

(b) having the terms of the October 23, 2018 settlement agreement specifically enforced.

The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of
her receipt of the Agency's notice within which to notify the agency of her choice. Complainant
shall be informed that in order to return to the status quo ante, she must return any benefits received
pursuant to the agreement If Complainant elects to return to the status quo ante, and all benefits
are returned, the Agency shall resume processing Complainant's underlying complaint from the
point processing ceased pursuant to 29 C.F.R. § 1614.108 et seq. If, however, Complainant elects
not to return to the status quo ante, the Agency shall notify Complainant that the terms of the
settlement agreement will be specifically enforced. Further, the Agency shall complete specific
performance of the agreement within fifteen (15) calendar days of Complainant’s selection of
enforcement.

A copy of the Agency's notice to Complainant regarding her options, as well as a copy of either
the correspondence reinstating the complaint for processing or the correspondence notifying
complainant that the terms of the agreement will be specifically enforced and evidence of such
performance, must be sent to the Compliance officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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 in the digital format required by the Commission, and submitted via the
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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.
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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 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 18, 2019
Date