0120180777
05-09-2018
Merlin W,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
Merlin W,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120180777
Agency No. 4V811000117
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's December 5, 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. � 1614.405.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Auto-Tech (Level 8) at its Vehicle Maintenance Facility ("VMF") in Ann Arbor, Michigan.
On June 28, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
1. By July 8, 2016, [the VMF Manager ("M1")] will issue the award letter for [Complainant's] Detail Position.
2. By July 8th, 2016, [M1] will process the PS Form 1723 to officially make [Complainant's] detail a Level 9 position.
3. [M1] will make sure [Complainant] receives Level 9 pay for the holiday and vacation time in the coming week.
4. [M1] will make a request to [the District Fleet Manager ("DM")] to revert [Complainant's] Level 8 position to Level 9 auto-tech. [M1] will keep [Complainant] informed about that communication.
According to Complainant, the Agency initially complied with the Agreement by changing his pay from Level 8 to Level 9, but just over a year after executing the Agreement, his pay converted back to Level 8. Complainant alleges that he notified M1, who initially ignored the discrepancy, then attempted to make up the difference by paying Complainant at Level 10 for a few days. Complainant alleges that for Pay Period 19 he was still about $12.00 short of what he would have received if M1 adjusted his pay properly to Level 9. Complainant was paid significantly less for Pay Period 20. Complainant argues that M1 breached the Agreement by not paying him at Level 9, and by failing to submit a new PS Form 1723 so that Complainant would be paid at Level 9. Complainant further argues that M1 breached the Agreement by not providing a sufficiently convincing written request to DM about permanently converting his position from Level 8 to Level 9.
The Agency determined that Complainant's breach allegation was untimely, and even if it were timely raised, it was not in breach of the Agreement. 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 - Detail Assignment
Provisions 1, 2 and 3 concern a detail assignment, however, the Agreement does not specify the start date or duration of the detail. The record lacks a copy of the award letter for Complainant's detail position (referenced in Provision 1) or the completed Form 1723 (referenced in Provision 2). The Agency provided a blank PS Form 1723, which explains that its purpose is to "record management-directed assignment changes involving temporary assignments to perform duties other than those in employee's official job description, including higher level and training assignments." The PS Form 1723 also provides that it must be renewed every 6 months, and "if the assignment is to exceed 1 year, it must be approved by the "area vice president or officer." Complainant contends that the detail was to last two years, yet the Agreement is silent as to whether M1 was obligated to renew the PS Form 1723 or obtain approval to extend the Level 9 detail from upper management. Since the detail is not defined in the Agreement, and it only references a singular PS Form 1723, we find the Level 9 payment is only enforceable to the extent of the one PS Form 1723, i.e. a maximum of 6 months.
Complainant acknowledges that M1 processed a PS Form 1723 after the Agreement was executed on June 28, 2016, and that per the Agreement, he received Level 9 pay beginning the first week of July. Thus, the PS Form 1723 that M1 completed in accordance with the Agreement would have expired in late December 2016 or early January 2017. According to Complainant, he received Level 9 pay until on or about September 1, 2017, when he reverted to Level 8. By then, Complainant's Level 9 detail had gone on over a year, so it appears that rather than seek approval to complete another PS Form 1723 for Complainant, M1 manually "corrected" Complainants pay by entering him as Level 10 for certain days so that the amount of compensation averaged to Level 9 pay. The Agency provides records of M1's haphazard payroll entries for Complainant without explanation as to the terms of the detail. These later payments fall outside the PS Form 1723 M1 completed in accordance with the Agreement. Complainant's breach claim alleges that the Agency owes him Level 9 pay for Pay Periods 18, 19 and 20 in 2017, well after the initial PS Form 1723 M1 completed in accordance with the Agreement expired. As the alleged payment deficiencies are all after the expiration of the PS Form 1723 covered under the Agreement, we find they are subsequent acts of alleged discrimination, not covered by the Agreement, and do not constitute breach.
Provision 4 - Request to Convert from Level 8 to Level 9
As a preliminary matter, Complainant's appeal improperly references statements allegedly made during mediation to support his allegation of breach for Provision 4. Confidentiality is considered one of the "Core Principles" of Alternative Dispute Resolution (ADR). "Parties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." See EEOC Management Directive for 29 C.F.R. Part 1614., Ch. 3 � II.a.3 (Aug. 5. 2015) citing the Administrative Dispute Resolution Act of 1996 ("ADRA") codified as 5 U.S.C. �574. Because confidentiality is essential to the success of all ADR proceedings, the Commission will not consider any statements made during mediation in this decision.
Complainant acknowledges that in accordance with Provision 4, M1 emailed DM requesting that Complainant's Level 8 position be converted to Level 9. Although Complainant now states that the email was insufficient, describing it as "very short and only made a reference to not paying [Complainant] mileage from the detail to justify [the level increase]," we find it fully complies with the plain language of Provision 4 of the Agreement. To the extent that Complainant interpreted Provision 4 as requiring a more lengthy and persuasive letter from M1 to include specific information about Complainant's skills and abilities, such interpretation should have been reduced to writing as part of the Agreement and in the absence of a writing cannot be enforced. See Jenkins-Nye v. Gen. Servs. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). Therefore, Complainant cannot establish breach on the grounds that M1's written request was not sufficiently detailed.
CONCLUSION
Accordingly, we AFFIRM the Agency's determination that no breach occurred.
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
May 9, 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 On or around October 4, 2017, Complainant raised these breach allegations when he initiated counseling for a new EEO Complaint (Agency Case No. 4V811000118). The Agency properly severed Complainant's breach allegations, by raising them in the instant complaint.
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