0120142478
10-14-2015
Darius C.,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
Darius C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120142478
Agency Nos. 4J-604-0012-13; 4J-604-0056-12
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 29, 2014, 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 as a Postmaster at the Agency's Chicago Post Office facility in Chicago, Illinois.
On January 17, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) the Parties expressly agree that they enter into this Global Settlement Agreement and Release ("Agreement") for the purpose of obtaining a full and final resolution and settlement of any and all litigation, claims, complaints, grievances, appeals, proceedings or causes of action of any kind in any forum that the Parties... had, has or may have, known or unknown against the other, in their personal as well as official capacities, including all claims relating to any aspect of [Complainant's] employment with the Postal Service. This Agreement includes, but is not limited to, such litigation, claims, complaints, grievances, appeals, proceedings or causes of action regarding or relating to the above referenced matters known as Agency Nos. 4J-604-0012-13 and 4J-604-0056-12;
(4C) The Postal Service and [Complainant] agree that the Postal Service offers and [Complainant] will apply for the Postmaster Voluntary Early Retirement ("VER"). [Complainant] will initiate the VER application process by immediately calling the USPS Human Resource Shared Service Center ("HRSSC") . . . to request the VER application and receive applicable instructions and / or counseling in the VER application process. [Complainant] agrees to submit his VER application, in accordance with the VER instructions he receives . . . as soon as possible, but in any event, not later than 7 days after [Complainant] signs this Agreement;
(4E) [Complainant's] VER will be effective as of January 25, 2013. In the event [Complainant's] VER application is denied for any reason, then within 30 days of the Postal Service being notified of such denial, [Complainant] will be reinstated to his former position, if available, or to an equivalent position if his former position is not available;
(4F) If Complainant fails to submit his VER application within 7 days of his signing this Agreement, his signature on this Agreement constitutes his voluntary resignation from the USPS effective January 25, 2013;
(4H) The Postal Service will pay to [Complainant] within 60 days of the approval of his VER application by OPM, the lump sum amount of Twenty-Five Thousand Dollars ($25,000.00);
(5) In exchange for the promises made by the Postal Service in this Agreement, [Complainant], his heirs, legal representatives and assigns, hereby releases, waives and forever discharges the Postmaster General, the Postal Service and its employees, officers, agents, agencies, and assigns from any and all claims, demands, ... and compensation of any nature whatsoever . . . which [Complainant] has or may hereafter acquire against the Postal Service in connection with his employment with the Postal Service. This paragraph does not apply to any payments of benefits to which [Complainant] may be entitled as a result of the processing of his approved VER application;
(10) This Agreement constitutes the entire agreement between the parties. [Complainant] agrees and acknowledges that no promise or inducement has been offered to him for signing this Agreement other than what is set forth in this Agreement;
(11) [Complainant] and the Postal Service agree that any modifications to this Agreement must be in writing and signed by [Complainant] and an authorized employee or agent of the USPS;
(12) This Agreement does not entitle [Complainant] to any monetary payments, including damages for any alleged breach, other than the monetary payments already provided in this Agreement; and
(13) If any provision(s) of this Agreement shall ever be invalidated or struck down because of a conflict with any laws, rules, regulations or decisions, any and all provisions of this Agreement that are not so invalidated or struck down shall remain fully valid and enforceable.
The Agreement was signed on January 13, 2013. The Agreement referenced the Postal Service's offer, and Complainant's acceptance of "the Postmaster Voluntary Early Retirement ('VER')." The Agency offered Complainant the benefits of the VER, even though it was outside of the eligibility time frame to apply for the Agency's 2012 VER program and its July 2, 2012 deadline. The Agency had previously informed Postal employees that an incentive in the amount of $20,000.00 would be paid to Postmasters who elected VER.
The Agency acknowledges that Complainant contacted the HRSSC and submitted his VER application, in accordance with the VER instructions he received, within 7 days of the date of his signing the Agreement. The HRSSC received the VER application on January 16, 2013. Complainant's retirement was effective on January 25, 2013, according to the SF-50 in the record.
The Agency sent Complainant a check, in the amount of $25,000, by letter dated March 8, 2013, in accordance with paragraph 4H. The Agency did not provide Complainant with the $20,000.00 incentive, however, that the Agency paid to postmasters who retired under the VER.
By letter to the Agency, dated March 24, 2014, Complainant advised the Agency that it breached the Agreement by not paying Complainant the monetary incentive of $20,000.00 that the Agency has issued with its offers of Voluntary Early Retirement. Complainant asserts the Agency did not abide by the provisions 4C and 4E, in which the Agency offered Complainant consideration in the form of a VER, which was an inducement for Complainant to sign the Agreement. Complainant seeks specific performance.
Agency Breach Decision
In its May 29, 2014 FAD, the Agency concluded that the Postal Service had not breached the settlement agreement. The Agency stated "nothing in the agreement promises that [Complainant] would receive the $20,000.00 as an incentive for retiring under the VER." The Agency states that the only monetary payment was what was stated in paragraph 4(H) as "compensatory damages."2
Next, the Agency stated that Complainant did not meet any of the eligibility requirements required to receive the $20,000.00 VER incentive at the time Complainant applied for retirement, effective January 25, 2013. The Agency reasoned that Complainant was ineligible for the 2012 VER program, because he had not submitted his documentation by the July 2, 2012 deadline, had not submitted a "completed Acknowledgement of Irrevocability of Voluntary Early Retirement Decision, and had not retired by July 31, 2012.
The Agency also found that Complainant's breach claim was untimely, because he did not notify the Agency of the alleged noncompliance within 30 days of the time when he should known of the alleged breach. The Agency reasoned that Complainant should have known of his breach claims by December of 2013 (the date of the second installment of incentive payments provided to the postmasters who retired under the 2012 VER). The Agency determined that it had not breached the settlement agreement.
This 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).
First, we note that paragraph 1 of the Agreement includes a prospective waiver, which required Complainant to waive all "known or unknown" claims, including claims for future and unknown disputes in any forum. It is axiomatic that parties can only resolve actual existing disputes. See Complainant v. Department of the Army, EEOC Appeal 0120133395 (April 1, 2015) ("We think it clear that there can be no prospective waiver of an employee's rights under Title VII.") To the extent that the Agreement purports to waive "any and all causes of action of any kind in any forum that the parties may have, known or unknown," we find that language is invalid and against public policy. Complainant can only agree to waive actual known claims. Fortunately, the Agreement, at paragraph two, more appropriately recognizes the scope of the Agreement as pertaining to actual claims which relate to any conduct or act occurring as of the effective date of the Agreement.
We find, with the exception of the troubling prospective waiver language in paragraph 1, that the Agreement is valid and is binding on both parties. We also find the Agreement is otherwise sufficiently clear to be enforceable.
On appeal, Complainant argues that the Agreement provided him consideration in the form of an unrestricted VER, which included the $20,000.00 incentive that the Agency has paid to postmasters who retired under the 2012 VER.
The Agency argues that Complainant's appeal should be denied, because Complainant's breach notice was untimely submitted and because it met its obligation by paying Complainant $25,000.00 for compensatory damages.
In the instant case, the Agreement was premised, in part, on the Agency's offer to provide Complainant consideration in the form of a VER, which was to be effective as of January 25, 2013. We note that paragraph 5 expressly references Complainant's "entitlement to payments and benefits as a result of the processing of his approved VER application."
The Agreement, on its face, states that "this Agreement constitutes the entire agreement between the parties. The Agreement expressly states that the Agency offered Complainant the unrestricted benefits of a VER. The only condition precedent was expressed in this Agreement. Complainant had to submit his application for the VER within a certain time, consistent with the instructions he received.
Complainant's receipt of the lump sum payment under paragraph 4H is distinct from the obligations and promises stated under 4C (which offered the VER) and 4E (which set Complainant's entitlement to VER consideration after the effective date after the close of the 2012 VER program). Moreover, to read 4H as the sole paragraph referencing monetary benefits would ignore those references at paragraphs 4C and 5.
Moreover, nowhere in the Agreement does it say that the payment mentioned in paragraph 4H was a substitute for the VER incentive or that the VER offered to Complainant did not include the incentive payment.
To the extent that the Agency argues that the terms of the 2012 VER program are applicable, it supports Complainant's position that he is entitled to the incentive payment, because the 2012 Voluntary Early Retirement came with an incentive payment of $20,000.00. If the Agency intended to disallow or limit the benefits under the VER that it offered to Complainant, that limitation or disallowance should have been specified in the Agreement.
Complainant met his obligation by submitting his VER application and abiding by the other provisions of the Agreement.
There is nothing in the Agreement that would require Complainant to have applied for retirement by July of 2012, since the terms of the Agreement do not mention these terms. Furthermore, it would have been virtually impossible to do so, since the Agreement was signed after July, 2012. For these same reasons, we do not find that the Agency has shown that Complainant's notice was untimely.
Rather, we find that the Agreement on its face states that an unrestricted VER was offered to Complainant and was approved. He is entitled to full consideration. The Agency has not shown that, in offering the VER as consideration, it was offering a different VER without an incentive payment or that the monetary payment of $25,000.00 was intended as a substitute for the incentive payment.
Finally, the record does not show that the Agency has cured the breach by making the incentive payment to Complainant within 30 days of the date that Complainant notified the Agency of the breach.
For all of these reasons, we find that the Agency has not shown that it is in compliance with the terms of the Agreement. We order specific performance of the Agreement requested by Complainant.
CONCLUSION
Accordingly, we REVERSE the Agency's Determination and REMAND the matter to the Agency for action consistent with the Order below.
ORDER (E0610)
Within thirty (30) calendar days after the date this decision becomes final, the Agency shall issue to Complainant a payment in the amount of $20,000.00, plus interest.
A copy of the Agency's acknowledgement letter to Complainant of this remand and a copy of the payment made to Complainant must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (M0815)
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 tends 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), 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, P.O. Box 77960, Washington, DC 20013. 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 Complainants 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
October 14, 2015
__________________
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 Paragraph 4H makes no mention of "compensatory damages."
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