U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stella K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120160137 Agency No. 4B-100-0012-13 DECISION Complainant filed an appeal with this Commission concerning compliance with the terms of a July 7, 2014 settlement agreement. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On July 7, 2014, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The July 7, 2014 settlement agreement provided, in pertinent part, that: 1. In exchange for the consideration described in paragraph 2, Complainant agrees to withdraw the following EEOC complaint with prejudice: 520-2014-00258X. 2. In exchange for consideration described in paragraph 1, the Agency agrees to the following: The payment of the sum of $3,000 to Complainant. This Settlement Agreement represents compensatory damages and will be issued in a check to Complainant. Complainant understands and agrees that the Postal Service shall issue an IRS Form 1099 to Complainant and shall report to the IRS the payment of $3,000 to Complainant. Complainant and her attorney understand and agree that the question of tax liability, if any, as a result of such payment is a matter to be resolved solely between Complainant and the IRS. The Agency shall issue the check within 60 days after this Settlement Agreement is fully executed. In addition to the $3,000 payment, the Agency will credit 497 hours of sick leave to Complainant for her future use. Finally, the Agency agrees to remove the August 6, 2012 AWOL charge from Complainant's record.2 By letter to the Agency dated September 30, 2015, Complainant alleged breach, and requested that the Agency reinstate her underlying complaint from the point where processing had ceased. Specifically, Complainant alleged that the Agency did not credit her with 497 hours of sick leave, in accordance with the terms of the instant agreement. The record reflects that on or about September 22, 2015, Complainant sent a letter to the Agency stating that she was returning $3,000 to the Agency. Specifically, Complainant stated "attached to this letter is Chase Bank Cashier Check No. [check number provided] dated September 21, 2015 in the amount of $3,000.00. This check represents a full refund to the U.S. Postal Service for the check that I received last year in August 2014 from the U.S. Postal Service in the amount of 3,000.00 as part of the EEOC Settlement Agreement Case No. 520-2014-00028X. Please note that I have already paid taxes on this money and I do not want to be refunded. For a little over a year I have been patiently and unsuccessfully waiting for the Agency to fully comply with the EEOC Settlement Agreement Case No. 520-2014-000258X and all I have gotten in response have been stories and lies and no full satisfaction to the settlement agreement [emphasis in its original]." The record reflects that on or about November 13, 2015, Complainant sent another letter to the Agency stating that on November 10, 2015, the EEO Compliance Specialist informed her that "finally last week, payroll credited me the 497 hours of sick leave that was due to me as per the EEOC settlement agreement more than a year ago." The record reflects that after the Agency failed to respond to Complainant's claim of breach, Complainant filed the instant appeal. In response to Complainant's appeal, the Agency argues that Complainant's appeal should be dismissed because it is premature. The Agency also states that on November 17, 2015, Agency management issued a letter of determination regarding Complainant's breach allegation, including the right to appeal the decision to the Commission. The record contains a copy of the Agency's letter of determination dated November 17, 2015. Therein, the Manager, EEO Compliance (Manager) notified Complainant that there was no breach of the July 7, 2014 settlement agreement. Specifically, the Manager stated that on August 7, 2014, a check in the amount of $3,000 was made payable to Complainant, and that on November 4, 2015, Complainant's 497 hours of sick leave was processed and that her new balance would appear in her November 24, 2015 paycheck. Further, the Manager stated that the $3,000 cashier's check Complainant sent to the Agency was returned to Complainant on October 5, 2015, with a letter explaining that the Agency could not accept the check and advised her that the instant agreement would be enforced. The Manager noted that Complainant again returned the cashier's check on or about October 28, 2015. The Manager stated that on November 12, 2015, he notified Complainant that the cashier's check could not be located and recommend that Complainant stop payment on the check. The record reflects that on November 17, 2015, the Agency received another check from Complainant in the amount of $3,000. In her correspondence, Complainant requested that the Agency not return the check to her pending the adjudication of her appeal. The Manager determined that the Agency would not process the check and hold it in abeyance pending the adjudication of Complainant's appeal. The instant appeal followed. ANALYSIS AND FINDINGS As a threshold matter, we find that Complainant's appeal is not premature. Pursuant to 29 C.F.R. § 1614.105(b), if the agency has not responded to Complainant's request, Complainant may file an appeal with the Commission 35 days after complainant served the agency with the allegation of non-compliance. The Agency argument that the appeal is premature is not persuasive because the Agency certainly received the allegation in order to write the response to appeal. Shortly after being notified that Complainant had filed an appeal with the Commission, the Agency took action by issuing a letter of determination dated November 17, 2015 finding no breach of the July 7, 2014 settlement agreement. 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 find that the Agency has breached the instant settlement agreement by not crediting Complainant her 497 hours of sick leave for future use. While the instant settlement agreement provided a specific time for the Agency to process payment to Complainant in the amount of $3,000 within 60 days following the signing of the agreement, there is no specific time for the Agency to credit Complainant 497 hours of sick leave. Specifically, we note that it took the Agency from July 2014 (the signing of the instant settlement agreement) to November 2015 to make good on Complainant's sick leave restoration. We find that the considerable passage of time (approximately 15 months) before the sick leave at issue was ultimately credited was unreasonable as to constitute breach. Where, as here, a breach is found, the remedial relief is either the reinstatement of the complaint for further processing or specific enforcement of the settlement agreement. We note that in her September 30, 2015 letter alleging breach of the instant settlement agreement, Complainant requested that the Agency reinstate her underlying complaint from the point where processing ceased. We find that Complainant should be provided the choice again of reaffirming the instant settlement agreement by accepting the reissued $3,000, or having her complaint reinstated from the point where processing ceased and allow the Agency keep the returned $3,000 check as well as taking back the 497 hours of sick leave. For the aforementioned reasons, we find that the Agency breached the settlement agreement in question. Accordingly, we REVERSE the Agency's letter of determination and REMAND the matter in accordance with the ORDER below. ORDER Within thirty (30) days from the date this decision is issued, the Agency is ordered to notify Complainant of her option to either return to the status quo prior to the signing of the settlement agreement (and have her underlying complaint reinstated for processing) or to obtain specific performance of the agreement. The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice within which to notify the Agency either that she wishes to return to the status quo prior to the signing of the agreement or that she wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, she must return any monetary benefits received pursuant to the subject settlement agreement and permit the Agency to take any steps to rescind the award of the 497 hours of sick leave. In the Agency's notice, it shall include information on its obligations due to Complainant (including the reissuance of the check for $3,000), or return of consideration or benefits due from Complainant. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement. If Complainant elects to reinstate her underlying EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased pursuant to the procedures and timeframes detailed in 29 C.F.R. Part 1614 The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." 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), 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 (R0900) 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 9, 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 The record reflects that Complainant does not mention anything about the removal of the August 6, 2012 AWOL charge from her record. Therefore, we will not address this matter in the instant case. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160137 6 0120160137