U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120152641 Agency No. 4C-450-0116-12 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated July 13, 2015, finding that it was in compliance with the terms of a September 18, 2013 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Letter Carrier at an Agency facility in Dayton, Ohio. The record reflects that Complainant has a medical condition that requires him to periodically use eye drops in an effort to protect his remaining eyesight. The frequency of usage varies, but Complainant generally uses the eye drops three times during the workday. Complainant was initially allowed to use the eye drops as needed. However, at an unspecified time, Complainant's manager changed. The new manager instructed Complainant that he must clock out in order to administer his eye drops. As a result of these new instructions, Complainant filed a grievance, requested a reasonable accommodation, and filed a discrimination complaint. Following the acceptance of Complainant's EEO complaint, he participated in mediation and entered into the instant September 18, 2013 settlement agreement. The September 18, 2013 settlement agreement provided, in pertinent part, that: a) The agency will pay the Complainant's attorney the lump sum of fifteen hundred dollars ($1,500.00). It is understood and agreed that this sum is for payment of attorney fees. The payment will be issued via a check made payable to [Complainant's Attorney], Esquire. It is understood and agreed that the [Agency] will not withhold income tax and/or other customary withholdings from this payment, but the payment is subject to tax and the [Agency] will report the payment, as required by law, to the Internal Revenue Service. b) The Complainant will be entitled to take leave in accordance with the [Agency] leave policies and requirements to the same extent and in the same manner as other employees. c) The Agency will continue to accommodate the Complainant as it is currently accommodating him (i.e., by allowing him to use his 50 minutes of break/lunch periods as needed throughout the work day) subject to the following limitations: i. This agreement to continue the Complainant's current accommodation will be null and void (i.e., will no longer be in effect) if there is a change in the Complainant's medical restrictions that requires the Agency to alter the Complainant's current accommodation. If there is such a change in the Complainant's medical restrictions, the parties will confer and make a good effort to agree on an alternative manner to accommodate the Complainant's restrictions; ii. The parties agree and the Complainant understands that this Agreement does not guarantee that he will be accommodated in the same manner forever. If there is an operational change in the needs of the Agency (other than a change In the identity of the management personnel at the Complainant's station) the Complainant's current accommodation may be discontinued and the parties will then confer and make a good faith effort to agree on an alternative manner to accommodate the Complainant's restrictions; and, iii. Nothing in this agreement affects Complainant's right to take comfort breaks as he is currently taking them. On May 22, 2015, the Agency received Complainant's letter alleging that the Agency began breaching the settlement agreement as of April 27, 2015. Specifically, Complainant alleged that the Agency began denying Complainant comfort breaks and requiring him to take an additional 30 minutes for lunch. Complainant's letter requested that the Agency implement the original terms of the settlement agreement. Specifically, Complainant requested to return to the 30 minute lunch break and two 10 minute comfort breaks, for a total of 50 minutes. In its July 13, 2015 final decision, the Agency stated that the breach allegation was untimely filed pursuant to 29 CFR § 1614.504(a). However, the Agency also stated that assuming, arguendo, that Complainant's breach allegation was timely filed, the Agency had conducted an investigation into Complainant's allegations and found that there was no breach. Specifically, the Acting Labor Relations Specialist (ALRS), who was also previously Complainant's Supervisor, stated that Complainant had previously told her that the settlement entitled him to an additional 30 minutes per day. This was supposedly in addition to his 30 minute lunch break and two 10 minute comfort breaks. ALRS said she verified this with the Station Manager at the time and noted that up until late 2014 Complainant had been allowed the extra 30 minutes per day. The Agency determined that the settlement agreement never authorized Complainant to work an additional 30 minutes per day on overtime. As a result, a determination was made to give Complainant a 60 minute lunch break and two 10 minute comfort breaks. The Agency stated that Complainant's lunch schedule was changed to reflect this as on November 12, 2014. The Agency determined that the change to Complainant's schedule did not breach the September 18, 2013 settlement Agreement. On appeal, Complainant, through his attorney, contends that his breach allegation was timely filed. Complainant states that in October 2014, the Acting Labor Relations Specialist (ALRS) informed him that he was going to have to start taking 60 minutes for lunch.2 Complainant contends that he monitored his hours and pay for the change, but did not notice any change until April 27, 2015, and did not see a change in his paycheck until on or about May 5, 2015. Complainant states that his allegation was thus timely filed when he reported the breach to the Cincinnati District Human Resources Manager (HRM) and the Agency Attorney on April 28, 2015. Complainant states in addition to the April 28, 2015 notice, he also requested EEO counseling on May 13, 2015. Additionally, Complainant states that on July 2, 2015, he notified the Agency Manager of EEO Compliance and Appeals of the breach allegation. Complainant contends that at the time that he signed the agreement, he sometimes took three 10 minute comfort breaks, and sometimes took less, depending on his condition that day. Complainant contends that provision (c)(iii) was very important when he signed the agreement, and reflects a "heavily negotiated part of the settlement [where] everyone agreed that the Agency would not require [Complainant] to make any changes in the way he used comfort breaks." Complainant contends that after signing the agreement, he "continued to take comfort breaks as he had been taking them" for a year without incident. Additionally, Complainant contends that the Agency's statement that he worked an additional 30 minutes of overtime a day was inaccurate. Complainant contends that his time fluctuated with the amount of work assigned, and not because of the agreement or his accommodations. Complainant contends that he never requested an extended lunch, and that the 60 minute lunch requirement combined with the two 10 minute comfort breaks substantially alters the terms of the agreement. Complainant seeks to have the complaint reinstated from the point where it was terminated, and to be awarded compensatory and punitive damages, along with attorney fees. ANALYSIS As a preliminary matter, we determine that the breach claim was timely filed, for the reasons set forth by Complainant as discussed above. We now turn to the merits of his breach claim. 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, the relevant portion of the subject settlement agreement stated, "[t]he Agency will continue to accommodate the Complainant as it is currently accommodating him (i.e., by allowing him to use his 50 minutes of break/lunch periods as needed throughout the work day)..." Both the Agency and Complainant have stated that the 50 minutes were divided into one 30 minute lunch break and two 10 minute comfort breaks. We discern nothing in the instant settlement agreement that states that the Agency had the ability to unilaterally alter the amount of time Complainant must take for his lunch break. Additionally, on appeal, Complainant argued that he never requested for additional time; and that any overtime he had was the result of his fluctuating work assignments, not because of the agreement or his accommodation. Requiring Complainant to take a 60 minute lunch break constitutes breach of the subject settlement agreement. CONCLUSION Accordingly, the Agency finding of no breach is REVERSED. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following action, as identified in the pertinent terms of the subject agreement: a) The Agency will continue to accommodate the Complainant as it is currently accommodating him (i.e., by allowing him to use his 50 minutes of break/lunch periods as needed throughout the work day) subject to the following limitations: i. This agreement to continue the Complainant's current accommodation will be null and void (i.e., will no longer be in effect) if there is a change in the Complainant's medical restrictions that requires the Agency to alter the Complainant's current accommodation. If there is such a change in the Complainant's medical restrictions, the parties will confer and make a good effort to agree on an alternative manner to accommodate the Complainant's restrictions; ii. The parties agree and the Complainant understands that this Agreement does not guarantee that he will be accommodated in the same manner forever. If there is an operational change in the needs of the Agency (other than a change In the identity of the management personnel at the Complainant's station) the Complainant's current accommodation may be discontinued and the parties will then confer and make a good faith effort to agree on an alternative manner to accommodate the Complainant's restrictions; and, iii. Nothing in this agreement affects Complainant's right to take comfort breaks as he is currently taking them. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a new decision concerning whether it has cured the breach of the subject settlement agreement. 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 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), 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 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 December 9, 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 The record reflects that Complainant is not compensated for time taken for lunch breaks. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152641 2 0120152641