U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120150920 Agency No. 4E-852-0035-14 DECISION On January 12, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated January 2, 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 complaint, Complainant worked delivering mail from the Agency's Boulder Hills Post Office station in Phoenix, Arizona. Believing that the Agency subjected him to unlawful discrimination, Complainant initiated equal employment opportunity (EEO) counseling. On February 14, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: * Management will pay Counselee 8 hours of pay at his regular rate. * Management will perform 3999 inspections by someone other than Management Officials 1 and 2 on Route 5042 for Co-worker 1 and Counselee on the same day of the week.2 Management Officials 1 and 2 signed the settlement agreement on behalf of the Agency, along with two management representatives. On October 14, 2014, the Agency's Manager, EEO Compliance and Appeals, the office identified in the settlement agreement to send a breach claim, received Complainant's breach claim. Specifically, he alleged that while within the two first weeks after the settlement agreement the Agency inspected Route 5042 when Co-worker 1 was thereon, it still did not do so while he was thereon. Complainant wrote that he reminded Management Official 1 at least 8 - 10 times since February 2014 of the settlement agreement. He also wrote he had an option on Route 5042. In its FAD, the Agency found that it had 35 days from receipt of the notice of breach to cure the breach or advise that it does not believe a breach occurred. 29 C.F.R. § 1614.504(b). It referred to an affidavit by the station manager. She wrote that she started as the station manager on September 2, 2014, did not learn of the Agency's non-compliance until October 2, 2014, and due to an on-the-job injury Complainant is off work. She wrote that the route inspection would be scheduled for January 15, 2015, if Complainant was back by then. The Agency found that by October 14, 2014, it did not have an opportunity to schedule the agreed inspection of Complainant because since then he was absent from duty. Based on this, the Agency found no breach. It observed that the station manager indicated an inspection would occur upon Complainant's return. The Agency also found that no specific time was agreed to in the settlement agreement to complete the inspection. On appeal, Complainant wrote that he reminded Management Official 1 almost weekly about the settlement agreement, and there were numerous opportunities for the Agency to do the inspection. He writes that his option on Route 5042 expired, suggesting this occurred in October 2014. He writes that after Co-worker 1 was inspected, there have been addition(s) to the route. In its March 20, 2015, opposition to the appeal, the Agency writes that Complainant was still off work, and for the reasons in the FAD it should be affirmed. The Agency submits a declaration by the station manager that Complainant is still off work. The Agency adds that it complied with paying Complainant 8 hours of regular pay. In his April 4, 2015, reply to the Agency's opposition, Complainant writes that he returned to work on March 30, 2015, following major back surgery on January 7, 2015. He writes that he was on Route 5042 until October 10, 2014, and was out of work starting on November 10, 2014. He reiterates his prior arguments. Complainant adds that Co-worker 1 became a supervisor at the station on April 4, 2015, and after Route 5042 was inspected in March 2014, about 45 minutes were added thereto, and asks how inspecting him now would be equitable. 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). When a settlement agreement does not provide a time frame for the performance of the provisions therein, performance nonetheless is required within a reasonable amount of time. Gomez v. Dep't of the Treasury, 05930921 (Feb. 10, 1994). Here, on February 14, 2014, the Agency agreed to separately inspect Route 5042 when Complainant and Co-worker 1 were thereon. By the time Complainant went off work with an injury in October or November 2014, about eight months had passed without his being inspected on the route. We find this was not a reasonable amount of time, and constitutes a breach. The Agency argues in effect that it was unable to cure its noncompliance after Complainant notified the correct office of the breach because by then or shortly thereafter he was out of work for an extended period due to an on-the-job injury. While this may be true, it does not absolve the breach.3 Accordingly, the FAD is REVERSED. ORDER The Agency shall notify Complainant of his option to return to the status quo prior to the signing of the settlement agreement within 60 calendar days after the date of this decision. The Agency shall also notify Complainant that he has 15 calendar days after receiving 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 to the Agency the eight hours of pay at the regular rate he received pursuant to the settlement agreement, including benefits if he received them, all without interest. The Agency shall determine any payment due from Complainant in connection with the above and include such information in the notice to him. If Complainant elects to return to the status quo ante and returns any monies or benefits owing to the Agency, as specified above, the Agency shall resume processing Complainant's complaint from the point processing ceased pursuant to 29 C.F.R. Part 1614. If Complainant elects not to return to the status quo ante, i.e., not to return any monies or benefits owing the agency, the Agency shall implement the settlement agreement as much as possible - if still possible separately re-inspect Co-worker 1 and inspect Complainant on Route 5042 on the same day of different weeks. The Agency shall submit evidence of compliance, as outlined 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 February 7, 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. 2 Complainant writes that on most days Management Official 1 was his supervisor. Complainant clarifies that under the settlement agreement, the Agency agreed to inspect him and Co-worker 1 while they were on Route 5042 in different weeks but on the same day of the week. 3 Moreover, Complainant contends that circumstances have changed - about 45 minutes were added to the route since Co-worker 1 was inspected thereon, his option on the route expired, and Co-worker 1 is now a supervisor. Assuming all this is true, it is too late for Complainant to get the benefit of his bargain, or the value thereof is likely less. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150920 2 0120150920