0120180498
04-26-2018
Terrance A,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
Terrance A,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180498
Agency No. 4F940004617
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated October 23, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in an unspecified position at the Agency's Post Office facility in Milbrae, California. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 23, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) Postmaster [name omitted] agrees to provide [Complainant] with a new job offer no later than Monday August 28, 2017. The new job offer will provide [Complainant] work within Monday through Friday. The parties understand that this job offer is temporary until there is a decision from the DOL in regards to his treating physician's August 9, 2017, letter in response to the Second Opinion Decision or October 31, 2017, whichever dates comes first. The parties understand that this new job offer is temporary and in no way� is an agreement that this offer will be provided in the future.
(2) Postmaster [________] agrees to replace the AWOL codes in TACS for [Complainant] from June 14, 2017, to the date of this agreement with LWOP codes.
(3) Postmaster [________] agrees to rescind the LOW dated June 22, 2017, for Failure to Maintain Regular Attendance.
By email to the Agency dated September 19, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that clauses #2 and #3 of the agreement had been breached but did not specify the nature of such breaches. In subsequent correspondence to the Agency, Complainant further alleged the following:
It was mutually agreed upon by the parties and understood that this NEW [sic] job offer will be temporary UNTIL there is a decision from the DOL (Department of Labor) in regards to Complainant's treating physician's August 9, 2017, letter in response to the Second Opinion Decision or Oct 31, 2017, whichever dates come first. Enclosed with this APPEAL is the DOL's DECISION LETTER dated September 25, 2017, outlining the specifics of [Complainant's] medical restrictions. I wish to also point out that this an on-going continuing violation of complainant's physical restrictions and limitations in large part because the Agency DID IN-FACT provide complainant a proposed modified limited duty job offer assignment dated 11/09/2017, based on the Second Opinion doctor's 06/20/2017 findings and determination. The Agency continues to harass and discriminate against complainant . . . due to his physical disability.
In its October 23, 2017 FAD, the Agency concluded that no breach occurred. Specifically, the Agency found that Complainant's AWOL codes were changed and the LOW was rescinded and removed from Complainant's file on August 24, 2017. The FAD further noted that a new job offer was issued on August 29, 2017, and that DOL issued its second opinion decision on August 23, 2017. Finally, the Agency noted that "A job offer has not been offered based of [sic] the second opinion decision due to [Complainant] filing another work related injury form (CA-2, occupational injury) on 9/21/17 which this medical documentation places him back to 4 hrs work and additional work restrictions until the case is adjudicated."
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 we find no breach of the agreement. Complainant did not specify how clauses 2 and 3 of the agreement were allegedly breached, and the Agency has shown that both clauses were complied with. With regard to Complainant's allegations concerning a new job offer, the record shows Complainant was provided, and accepted "under protest" a new job offer on August 30, 2017. While this is two days beyond the August 28 deadline provided in the agreement, we find that the Agency has substantially complied with the agreement.
CONCLUSION
The FAD is AFFIRMED.
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 (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
April 26, 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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