[Redacted], Wilfred M., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020005428 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilfred M.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020005428 Agency No. BOP 2018-01078 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated August 26, 2020, finding that it was in compliance with the terms of a December 16, 2019 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 December 16, 2019, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued in the EEO complaint process. The December 16, 2019 settlement agreement contained, in pertinent part, the following provision: Provision 5: The Agency agrees to credit or restore within 21 working days 500 hours of Sick Leave to Complainant. The Agency will then apply 400 hours of the 500 credited sick leave to 400 hours of LWOP taken during PP01 - PP05 of 2019, 80 hours per pay period for a total of 400 hours, converting the LWOP to sick leave during these pay periods. The conversion of 400 hours of LWOP to Sick Leave will occur within 21 work days following the completion of the credit or restore action. The parties recognize a correction for each pay period must be generated by Human Resources Staff. 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. 2020005428 2 During the relevant period, Complainant worked as a Cook Supervisor, WS-8, at the Agency’s Federal Detention Center in Honolulu, Hawaii. By email dated May 20, 2020, Complainant alleged breach of section 5 of the December 16, 2019 settlement agreement. Specifically, Complainant claimed that the during pay period 25 (PP25),2 the Agency removed 160 hours of Leave Without Pay (LWOP) and applied 160 hours of sick leave to Complainant’s time and attendance records. Complainant asserted that the Agency failed to convert the other LWOP to sick leave for subsequent pay periods, PP25 2019 through PP19 2020, until it satisfied its 400 LWOP to sick leave conversion. Instead, Complainant indicated that the Agency manually removed 380 of sick leave in PP25 2019 without awarding it to Complainant as required by the settlement agreement. In response to Complainant’s allegation of breach, the Agency conducted an investigation to determine whether it had breached the settlement agreement. The Agency indicated that the investigation revealed that 500 hours of sick leave were credited to Complainant’s account on December 19, 2019. The Agency further indicated that 400 of the 500 hours were then applied to Complainant’s LWOP balance which converted the LWOP to sick leave as required by provision 5 of the settlement agreement. Consequently, on August 26, 2020, the Agency issued a final decision finding no breach of the December 16, 2019 settlement 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 (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). 2 The record indicates that PP25 was the pay period immediately following Complainant signing the December 2019 settlement agreement. 2020005428 3 Here, the record includes a copy of the June 15, 2020 investigation report initiated by the Agency and conducted by the Human Resources Manager (HR Manager) to determine whether the Agency had satisfied provision 5. The report includes an internal HR document indicating that 500 sick leave hours were adjusted to the time and attendance systems on December 19, 2019. Therefore, the Agency restored 500 sick hours within 21 days of the date of the December 16, 2019 settlement agreement. The report further includes a 2019 audit of Complainant’s LWOP hours. The audit confirms that Complainant did not use any LWOP hours for pay periods PP1 through PP5, but he used a total of 636.5 LWOP hours from PP6 through PP17. Because Complainant did not use any LWOP hours during pay periods PP1 through PP5, there was no leave for the Agency to convert from LWOP hours to sick leave hours. Provision 5 of the settlement agreement only specifies that LWOP hours used during PP1 through PP5 2019 be converted to sick leave hours. Therefore, there was no leave conversion for PP1 through PP5 2019. The report also includes a 2019 sick leave audit which reflects that Complainant used a total of 390 hours and carried over 120 hours from 2018, resulting in a total of 510 sick leave hours used. Documentation in the report indicates that Complainant received 500 sick leave hours on December 19, 2019, which left him with 10 hours of sick leave used in 2019. However, the HR Manager noted one discrepancy in Complainant’s sick leave hours covering PP1 2019 through PP10 2020. The HR Manger explained that 10 hours of sick leave was not converted to 10 hours of Holiday Off which created a discrepancy of 4 hours of sick leave missing. Nevertheless, the HR Manager indicated that this discrepancy would be corrected in PP11 2020. Therefore, our review of the documentation in the record supports that the Agency has satisfied provision 5 of the December 16, 2019 settlement agreement. The Agency’s final decision finding no breach of the December 16, 2019 settlement agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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. 2020005428 4 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020005428 5 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 January 8, 2021 Date