0120161995
11-10-2016
Pearline M.,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
Pearline M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120161995
Agency No. 1F904005415
DECISION
Complainant timely appealed to this Commission from the Agency's May 3, 2016 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 worked at the Agency's Los Angeles Network Distribution Center in Bell, California.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process in June 2015. On September 23, 2015, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter. Provisions 2 and 3 stated:
2. [The Health and Resource Management Specialist ("HR")] requested, that [Complainant] provide corrected medical reports to reflect periods of disability to include a begin date and end date. Medical must also include diagnosis. Medical cannot be back dated. In order to pay COP for July 25, 2014 through August 11, 2014, and for August 11, 2014 through August 24, 2014, Management needs medical report showing the physician was seen on August 24, 2014.
3. [Complainant] has requested from management clarification in writing regarding back dated medical policy of the Agency and [the Department of Labor ("DOL")]. [HR] agrees to research this information in a timely manner.
On November 23, 2015, the Agency received notice from Complainant alleging that it was in breach of the Agreement. Specifically, Complainant alleged that Management refuses to pay her continuation of pay ("COP"), for the period of August 24, 2014 through September 10, 2014.2
In July 2014, Complainant suffered a knee contusion while on the job. In accordance with Agency policy, Complainant submitted a CA-1 form (Traumatic Injury) to obtain COP to cover absences related to her injury. Complainant followed up with the Agency's Injury Compensation Office, where she spoke with the Health and Resource Management Specialist ("HR"), a party to the instant Agreement. HR determined Complainant's payments were delayed and incomplete as a result of administrative error and resubmitted the CA-1. However, on October 2, 2014, the Department of Labor ("DOL") denied Complainant's COP, citing incomplete paperwork. Complainant appealed to the DOL Office of Workers' Compensation Programs ("OWCP"). While Complainant's appeal was pending, the Agency made partial COP payments until February 2015, when the Plant Manager placed an involuntary indebtedness on Complainant's payroll, so that the partial payments she received were taken out of her paychecks. On April 24, 2015 Complainant won her OWCP appeal, entitling her to COP.
Despite winning her appeal, Complainant alleged that the Agency still had not reimbursed her for both COP and the amounts deducted from her paycheck. Relevant to the instant complaint, on September 3, 2015, Complainant submitted medical documentation referencing the August 24, 2014 time frame, but dated September 2, 2014 and September 11, 2014. HR did not accept this documentation for purposes of COP payments because it lacked a diagnosis and was back dated (dated after the date of the medical absence). Complainant pursued an EEO complaint to enforce payment, which was resolved through the instant Agreement. The Agreement allowed that HR would accept corrected documentation that met specifications listed in Provision 2. Among other things, Complainant had to provide proper documentation that she was seen by a physician on August 24, 2014; and "the medical reports cannot be back dated in order for [Complainant] to be paid COP."
Provision 3 was added after Complainant, who had looked into the matter, asked HR how she determined that back dated medical documentation could not be accepted for purposes of COP payment, and HR did not have an answer. In accordance with Provision 3, on September 25, 2015, HR sent a letter to DOL/OWCP requesting clarification on DOL's requirements and policy concerning medical documentation for COP payments both generally and regarding back dating. On October 20, 2015, OWCP responded by explaining "supporting medical evidence" requirements for COP payments, under its regulations.3 There is no indication in the letter or the regulations that back dated medical documentation cannot be used as "supporting medical evidence" for COP payments.
Complainant alleges the Agency breached the Agreement when HR continued to deny COP payments due to back dated medical documentation when the DOL/OWCP response letter did not identify a policy disqualifying back dated documents as supporting evidence for COP payments. After conducting an inquiry, the Agency determined that no breach occurred.
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 Defense, 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).
Complainant appears to argue that because Provision 3 of the Agreement resulted in a clarification from DOL/OWCP that there is no rule barring the use of back dated medical documents for COP payments, the Agency must accept her back dated medical documentation. The Agency maintains that Provision 3 only required HR to research the policy on back dated medical documentation; and HR is not obligated to act based on her findings. Moreover, the Agency argues that Complainant is bound by Provision 2 of the Agreement, which states that medical documentation for the specified dates cannot be back dated for purposes of obtaining COP payment.
As for Provision 2, we find that the phrase "Medical cannot be back dated" is too vague, rendering it meaningless for purposes of enforcement. There appears to have been no meeting of the minds regarding this sentence, and, as written, would have made it impossible for Complainant to submit any medical reports for the specified dates as it would always be regarded as "back dated. " As such, we find that the agreement between the parties should be reformed to eliminate this sentence. The remainder of Provision 2 stands.
We find that the Agency fully complied with Provision 3, as HR promptly requested clarification from the DOL, the authority on COP payments, and provided Complainant with the result of her inquiry. Although Complainant alleges she did not see the DOL response letter until she raised the instant breach claim, she acknowledges that her EEO Counselor contacted her with the results in November 2015.
Therefore, we are reforming the Agreement by eliminating the phrase "Medical cannot be back dated" from Provision 2.
Accordingly, because the agreement has been modified we REMAND the matter to the Agency for compliance with the reformed Agreement and action in accordance with the following Order.
ORDER
1. Within thirty (30) calendar days after the date this decision becomes is received, the Agency shall provide Complainant with a new Final Agency Decision ("FAD") reflecting its consideration of her breach claims based on the reformed Agreement.
2. The Agency shall submit a report of compliance to this Commission, as provided in the "Implementation of the Commission's Decision" provision below. The Report must include a copy of the FAD, and, if there is a finding of breach, documentation of actions taken to remedy the breach (e.g. proof of COP payments in the form of canceled checks or screenshots of electronic payment transaction, including Complainant's name, date of payment, and amount paid).
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 (M0416)
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 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. The requests 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 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
November 10, 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 This decision is limited to whether or not a breach occurred in the Agreement before us. We will not address matters raised by Complainant that are not referenced in the Agreement, including her allegation that the Agency continues to deduct money from her paycheck for past COP payments, and has not repaid prior deductions. Likewise, we cannot address Complainant's contention that the Agency must reimburse her TSP account for two thousand dollars, the amount she allegedly had to withdraw as a result of the Agency's nonpayment.
We note that nothing in the Agreement indicates Complainant waived her right to pursue COP payment through other avenues, including, but not limited to, petitioning the DOL for enforcement of its April 24, 2015 decision (The provision in the Agreement stating that "[t]his agreement constitutes a full and final settlement of all issues arising out of the subject matter of the following EEO complaint numbers" does not list any EEO complaint numbers including the instant complaint, nor is there reference to a grievance or other administrative remedy Complainant waived as consideration.)
3 Citing 20 C.F.R �10.205 and 20 C.F.R �10.210(b).
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