0120152136
05-04-2016
Ellsworth D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ellsworth D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120152136
Agency No. 1B102003813
EEOC Hearing No. 520-2015-00137X
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 14, 2015, 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 compliance action, Complainant worked as a Tractor Trailer Operator at the Agency's Manhattan Vehicle Maintenance Facility in New York, New York.
On August 30, 2013, Complainant and the Agency entered into a settlement agreement to resolve the above referenced EEO matter. The settlement agreement provided, in pertinent part, that:
(1) [the Agency designee] will readjust [Complainant's] pay for the pay period #15-2013;
(2) [the named designee] will submit all forms necessary to adjust [Complainant's] pay for 2010, 2011 and his uniform allowance 2012, 2013.
By letter to the Agency dated May 27, 2014, Complainant alleged that the Agency was in breach of the settlement agreement.2 He seeks further adjustments. He claims that not all of the adjustments were made. It is unclear from the record on this appeal whether Complainant is requesting that the Agency specifically implement the Agreement terms or is seeking reinstatement of the underlying complaint.
The Agency payroll journals show that an adjustment for Pay Period 15, 2013 was processed in Pay Period 16, 2013 and an additional adjustment for Pay Period 15, 2013 was processed in Pay Period 19, 2013. The record also shows that the manager attempted to make other adjustments, but she was not successful in making the adjustments.
In its breach decision, the Agency stated that "it appears that [Complainant] was properly compensated [but] that adjustments could not be processed." The Agency found no breach. It reasoned that the Agreement did not specify what adjustments needed to be made to Complainant's pay and that the only requirement was that the Agency "submit all forms necessary to adjust" his pay. Next, the Agency determined that "since the Postal Service could not process these adjustments that [Complainant] should be given the opportunity to reform the agreement by voiding provision 2 or given the choice to void the entire agreement and to continue the processing of case number 1B-102-0038-13 at the point processing ceased." The Agency requested that Complainant notify the Agency in writing of his choice.
This appeal followed. Complainant did not file a brief on appeal.
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).
We find the Agreement valid and binding on both parties.
In the instant case, the Agreement required that the Agency readjust Complainant's pay for the pay period #15 2013 and that the Agency take the steps necessary to adjust his pay for 2010, 2011 and for his uniform allowance in 2012 and 2013. It is not for us to construe the meaning or intention of the Agreement or its terms. Consequently, the plain meaning of provision 2 of the settlement agreement supports Complainant's claim that the parties intended to make adjustments beyond those mentioned in paragraph 1. Moreover, inasmuch as the Agency acknowledged that it was unable to make all of these intended adjustments and recommends that Complainant should be given the option to void the Agreement or reinstate the complaint, we find sufficient evidence to sustain Complainant's breach claim.
Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. In this case, the record is unclear as to whether Complainant seeks further adjustments or wants to reinstate the underlying complaint 1B-102-0038-13. Accordingly, we give Complainant the option, in accordance the ORDER below, of either reinstating his underlying EEO complaint or specifically enforcing the terms of the Agreement.
CONCLUSION
Accordingly, we REVERSE the Agency's Determination and REMAND the matter to the Agency for actions consistent with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision was issued, the Agency is ordered to
Notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or the return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date of this decision.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all the terms of the Agreement. Specific performance would require the Agency to submit evidence that the Agency complied with the requirements set forth in paragraphs 1 and 2 to readjust Complainant's pay for the pay period #15 2013 and that it complied with the stated intention to "adjust his pay for 2010, 2011 and his uniform allowance 2012, and 2013." The Agency shall provide such information in the notice to Complainant. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the documentation must be sent to Complainant and to the Compliance Officer as referenced below.
If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within (15) calendar days of the date of this decision, unless the matter is otherwise resolve prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty days of receipt of Complainant's request.
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. A copy of the Agency's letter of acknowledgement to Complainant and a copy of the notice that transmit the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (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 4, 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 The Agency docketed Complainant's May 27, 2014 communication as presenting a breach claim with regard to the settlement in Case Number 1B-102-0038-13 and as a new complaint, to which the Agency assigned as Number 1B-102-0025-14. This decision pertains only to the breach claim.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152136
6
0120152136