EEOC Appeal No. 0120152304
01-28-2016
Herman F. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herman F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120152304
Agency No. 4E-890-0012-15
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated May 26, 2015, finding that it was in compliance with the terms of a February 2, 2015 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 February 2, 2015, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The February 2, 2015 settlement agreement provided, in pertinent part, that:
2. Counselee shall provide Station Manager (at the Emerald Station) with a medical statement stating that Counselee had no medical restrictions during/from November 30, 2014 to February 2, 2015.
3. Upon review of Counselee's medical statement outline in item #2 above, Counselee shall be compensated for lost wages between the dates of November
30, 2014 and February 2, 2015, less three (3) paid holidays, totaling 51 days at 8 hours a day. The parties agree that the total hours to be paid the Counselee is 408 hours at Counselee's hourly rate of $15.63, totaling six thousand three hundred seventy-seven dollars and four cents ($6,377.04) less any/all applicable withholdings. Payment will be made within two (2) weeks of receipt of the medical statement.
By letter to the Agency dated February 5, 2015, Complainant alleged breach of provision 3. Specifically, Complainant alleged that when on February 5, 2015, he submitted the requisite medical documentation to the Labor Relations Manager, but that he did not receive payment by February 19, 2015, which was the two weeks she guaranteed him.
In its May 26, 2015 letter of determination, the Agency found no breach of provision 3. The Agency stated that Agency management received Complainant's breach claim on March 9, 2015, and that Agency management took immediate action to cure any breach that may have occurred, and that Complainant received his payment on March 27, 2015. The Agency stated that according to the Labor Relations Manager (Manager), she prepared the requirement forms and submitted to Accounting Services to process the payment to Complainant. The Agency noted that Accounting Services issued a check dated March 17, 2015, to Complainant in the amount of $6,377.04. The Agency further noted that the Manager stated that Complainant retrieved the check in person on March 27, 2015.
Complainant, on appeal, argues that on February 5, 2015, he submitted the requisite medical documentation to the Manager but that she "didn't even fill out Form 8041 and sign and date it until February 19, 2015 on the last day of the two (2) weeks as promised in the settlement agreement. Furthermore I feel [Manager] purposely and willfully was withholding the processing of the settlement agreement to delay payment and that I experienced reprisal due to the whistleblower/retaliation 11c complaint I have filed with OSHA, [Docket number provided]."
The record reflects that Complainant submitted a copy of his email correspondence dated February 19, 2015 with the Manager, concerning the delay of his payment. Therein, the Manager responded stating "your settlement payment is being submitted for processing by Eagan (Accounting) today. The USPS intranet system was down for several days last week and we had a holiday Monday."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 determine that, to the extent the Agency breached provision 3 of the instant settlement agreement by not providing Complainant his payment within two weeks of receipt of the medical documentation, the Agency nevertheless cured any such breach. The record reflects that on February 5, 2015, Complainant submitted the requisite payment documentation, but did not pick up his payment check until March 27, 2015. The settlement agreement provided a specific time for the Agency to process payment to Complainant within two weeks of receipt of the medical documentation. We acknowledge that the Agency did not give Complainant his payment check within the two-week time period. However, the Agency subsequently cured its breach of the agreement. The record reflects that the Manager explained to Complainant that the time delay of processing the payment was based on the Intranet serve being down for few days and the President's Day holiday. The Commission has held that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April 25, 1996). Based on the foregoing, to the extent the Agency was in breach of its obligation to provide Complainant his payment within a reasonable amount of time but due to the Agency's server being down for a couple days and the President's day holiday, we find that such breach has now been cured.
The Agency's letter of determination finding no breach of provision 3 of the February 2, 2015 settlement agreement is AFFIRMED.
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 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, 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 (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
January 28, 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.
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