0120161339
03-23-2017
Noah W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Noah W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120161339
Agency No. 4E852016315
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 2, 2016, 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 Letter Carrier at the Agency's Coronado Station facility in Santa Fe, New Mexico.
Complainant and the Agency entered into two settlement agreements to resolve two EEO matters: Those two matters were referenced as EEO Pre-complaint No. 4E-852-0145-14 and USPS EEO Case No. 4E-852-0163-15. On August 19, 2015, the parties entered an agreement with regard to an emergency placement issued on July 10, 2015. On October 7, 2015, the parties entered an agreement with regard to a notice of removal issued on October 1, 2015. The settlement agreement executed on October 7, 2015 incorporated by reference the agreement from August 19, 2015. The settlement agreements provided, in pertinent part, that it is mutually agreed between the parties that this matter be resolved as follows:
(1) The removal issued to [Complainant] on 1 October 2015 and received 6 October 2015 will be rescinded and reduced to a 14-day time-off suspension for 2 years from the date of the incident 10 July 2015. [Complainant] will report for duty on 8 October 2015.
(2) The parties agree that the suspension will commence on Saturday 17 October 2015 and that [Complainant] will report back on 31 October 2015. No grievance will be filed with regard to either the 14-day suspension or the removal.
(3) The terms of [Complainant's] grievance settlement of 19 August 2015 will be complied with; he will be paid for eight hours of administrative leave, plus six hours overtime, within two weeks from 7 October 2015;
(4) The EEO issue of discrimination with regard to this grievance will be withdrawn; and
(5) This agreement constitutes a full and final settlement of all issues arising out of the subject matter of the following EEO complaint numbers and by signing this agreement the counselee withdraws any and all pending EEO complaints and appeals relative to the subject matter of these complaints: Complaint Number 4E-852-0163-15. [Only a single complaint number was listed].
By letter to the Agency dated January 12, 2016, Complainant alleged that the Agency was in breach of the settlement agreements. He requested that the Agency reinstate his complaints. Specifically, Complainant alleged that the Agency still owed him 3.19 hours of administrative leave. He also stated that that he was "contesting the noncompliance of the attached settlements as well as the grievance filed on 12-15-15. He stated that copies of his notice of noncompliance were mailed to the Agency on January 7, 2016. After he did not receive a response from the Agency, he filed his appeal directly with the Commission.
Thereafter, the Agency issued its decision on May 2, 2016. The Agency acknowledged that there had been a delay in management processing the pay adjustments, but it stated that the payments have been made and the other requirements of the settlement have been fulfilled. The Agency concluded that it complied with the Agreement. The Agency reasoned that it completed the actions required by the settlement in Pay Period 22 and 23 of 2015 (October 3 to October 30, 2015).
Neither party filed a statement 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 regarding 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).
The Agreement provided that no grievance will be filed with regard to either the 14-day suspension or the removal. It is unclear why the Agreement stated that there could be no grievance with regard to the "removal," inasmuch as the removal was rescinded under the terms of the Agreement, and was replaced with a reduced a 14-day suspension. Nevertheless, we find that the Agreement is valid and binding on both parties.
In the instant case, the Agreements required the rescission of the removal issued on October 1, 2015 and substitution of a reduced penalty in the form of a 14-day suspension with a two-year probation period. The Agreement referenced the first settlement Agreement, which also required the expunging of the emergency placement, a change in the code from annual leave to administrative leave for the eight hours charged to Complainant on July 10, 2015, and payment for six hours at the overtime rate, within two weeks from October 7, 2015.
The record before us indicates that Complainant was "returned to work on October 8, 2015" on the condition that he would serve an unpaid time off 14-day suspension. The suspension was served. The Agreement did not become "null and void on the terms on noncompliance, as of October 22, 2015." The settlement agreement remains valid. The October 1, 2015 notice of removal was rescinded. The parties mutually agreed to substitute a 14-day suspension, with a two-year probation period for the removal. An action to remove Complainant based on the reasons stated in the October 1, 2015 notice of removal would be a breach of the Agreement. The record before us does not show that the Agency removed Complainant. In addition, the two-year probationary period has not expired.
Although the Agency did not comply within the two-week time period specified in the agreement, the record shows that the Agency complied after Complainant provided the Agency with his notice of noncompliance. Moreover, the record shows that the Agency otherwise completed the actions.
For these reasons, and based on the record before us as of this date, we find that Complainant failed to show that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Determination.
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 (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
March 23, 2017
__________________
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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