0120180661
04-27-2018
Liza B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Liza B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180661
Agency No. 4F945001417
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's November 6, 2017 final decision 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 was employed by the Agency as a Postal Support Employee ("PSE") at its Oakland Processing and Distribution Center ("P&DC") in Oakland, California.
On February 3, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve an EEO Complaint naming her prior supervisors at Piedmont Station and Shattuck Stations. Relevant to this Decision is Part 3 of the Agreement, which states:
[Complainant] will compile a PS Form 8038/2240 (Pay adjustment forms) for back pay from January 4 to January 6, 2017. [Complainant's Representative] will work with [Management's Representative] to complete processing of back pay by February 10, 2017.
On September 15, 2017, Complainant initiated a new EEO complaint with an EEO Counselor, alleging that the Agency breached the Agreement because it had not paid the full amount of back pay owed. Complainant also alleged that the Supervisor of the Piedmont Station was intentionally withholding payment as retaliation for prior protected EEO activity. The EEO Counselor properly determined that Complainant was not raising a new complaint, but rather, alleging breach of the February 3, 2017 Agreement. The September 15, 2017 complaint was closed and submitted to the Agency as "notice" of breach. After an investigation, the Agency issued a Letter of Determination to Complainant, along with supporting documentation, finding that it was not in breach as alleged. Complainant raised this appeal.
ANALYSIS
Under 29 C.F.R. � 1614.504(a) 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). Under the Plain Meaning Rule, 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).
Under the Plain Meaning Rule, the only back pay at issue is that which is stated in the Agreement. The only mention of back pay in the Agreement can be found in Part 3, which requires the Agency to pay back pay for the dates of January 4, to January 6, 2017. Although the Agency states that it included a payroll journal demonstrating that the back pay payment for these dates was processed on Pay Period 4 of 2017, (pay day February 24, 2017), we found the document unclear about calculations. Proof of payment is also missing from the record.
On appeal, Complainant references at least two other time frames where the Agency allegedly has not paid back pay it owed her. Complainant also requests "clear documentation regarding if the payment [she] received is from grievance," as Complainant did not believe it included the agreed upon back pay. The only clear documentation relevant to the instant breach allegation concerns the back pay period for January 4 through 6, 2017. We cannot address Complainant's other allegations of nonpayment. If Complainant wants to obtain clarification or raise a breach allegation on back pay referenced in a separate agreement, she must do so by contacting the Agency and following the instructions provided in that agreement.
CONCLUSION
Accordingly, since the record is not clear on the extent of the Agency's substantial compliance, we REMAND the matter to the Agency for further action in accordance with the following Order.
ORDER (C0610)
1. Payment - within 30 calendar days of the date of this Decision, if it has not done so already, the Agency shall pay Complainant back pay in accordance with Part 3 of the February 3, 2017 Agreement. If it has already paid the back pay, the Agency shall also provide Complainant with proof of payment in the form of pay roll documents or a copy of a canceled check to include Complainant's name, date of payment, and amount paid.
2. Plain Language Explanation - within 30 calendar days of the date of this Decision, the Agency shall issue a letter to Complainant containing a clear and concise plain language explanation of how much back pay was paid and how it arrived at that amount. The letter must also contain appeal rights to the Commission.
3. Compliance Report - The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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). 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 (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 (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
April 27, 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.
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