U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brandon D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120150945 Agency No. 4G-700-0042-13 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 11, 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 Clerk, GS-07, at the Agency's Drew Station in Lake Charles, Louisiana. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 13, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency agrees: 2(a) To provide 64 (sixty-four) hours of additional sick leave to [Complainant's] account. That will be done as soon as possible, but no later than 60 days from the date of this Agreement. 2(b) That as part of [Complainant's] modified job offer (dated 2/15/13), [Complainant] has 8 hours of work and his days off are Saturday and Sunday. The parties understand that there is no guarantee that the modified job would last forever or that the days off will stay the same as things may change, such as by excessing, [Complainant] bidding on other positions, etc... On July 22, 2014, Complainant sought pre-complaint counseling for the filing of a separate EEO Complaint, which the Agency labeled as Case No. 4G-700-0077-14. Therein, using PS Form 2564-A,"Information for Pre-Complaint Counseling," Complainant alleged that he was subjected to discrimination based on race, sex, age, disability, and in reprisal for his prior protected EEO activity with regard to the instant Agency No. 4G-700-0042-13. Complainant specifically alleged that he was not assigned available work, his work hours were reduced, and his nonscheduled work days were changed from Saturday and Sunday to Saturday and Wednesday. The Agency thereafter construed Complainant's pre-complaint counseling as an allegation of a breach of the subject settlement agreement with respect to paragraph 2(b). In its December 11, 2014, FAD, the Agency noted that Complainant alleged that paragraph 2(b) prohibits it from making changes to his modified job assignment, including his work hours and his days off. The Agency noted that Paragraph 2(b) of the settlement agreement merely acknowledges that Complainant has a modified job offer and further acknowledges that the Agency may make changes to his existing job offer. The Agency found that management in Paragraph 2(b) only agreed to do that which it was already required to do under existing law, and therefore found that the provision was void for a lack of consideration. The Agency found that although Paragraph 2(b) was void, the remainder of the settlement agreement was still valid. The Agency specifically found that the provision concerning the 64 hours of additional leave to be credited remains. The Agency therefore found that it had not breached the settlement agreement. The Agency lastly noted that Complainant's new claims of discrimination are being processed under Agency No. 4G-700-0077-14. Complainant thereafter filed the instant appeal, but did not submit a brief. 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). In the instant case, albeit for different reasons, we concur with the Agency and find no breach of the instant settlement agreement. The Commission has held that where a settlement agreement assigns a position and does not specify the duration of that position, it is reasonable to assume that the parties did not intend that the position would last forever. See Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 30, 1991). We have applied this rule where the settlement agreement was silent regarding the possibility of future reassignments. Given the above and considering that the instant agreement specifically states, "The parties understand that there is no guarantee that the modified job would last forever or that the days off will stay the same as things may change . . . .," we find that the Agency did not breach the agreement. In so finding, we note that the terms of Complainant's modified job continued for approximately a year and a half after the settlement. See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120140927 (June 23, 2014) (finding that Complainant's reassignment, even after less than a year, did not constitute a breach of the Agreement); see also Buck v. Dep't of Veterans Affairs, EEOC Appeal No. 01A12839 (July 6, 2001) (finding no breach where Complainant was reassigned in accordance with a settlement agreement, and held the new position for more than a year before the position was reclassified and ultimately downgraded). Accordingly, we AFFIRM the Agency's FAD, finding of no breach of the March 13, 2013, settlement agreement. 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 __________________ 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 0120150945