U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Taren P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172704 Agency No. 1G351004916 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated August 3, 2017, 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 On October 25, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter and a grievance. The settlement agreement provided, in pertinent part, that, in exchange for Complainant withdrawing her claims, management agrees to process a pay adjustment for Complainant. Specifically, the Agency agreed to: (1) Process a pay adjustment for 24 hours of annual leave for July 2, 2016, July 4, 2016 and July 5, 2016; (2) [Pay] 8 hours - Holiday Pay for July 3, 2016; (3) [Pay] 87.55 Administrative Leave for July 1, 2016 and July 8, 2016 - July 19, 2016, for a total of 119.55 [hours]; and (4) In the event that this agreement becomes null and void, the complainant will be allowed to either renegotiate the terms of this agreement to be in compliance with the collective bargaining agreement or to reinstate his / her complaint. By letter to the Agency dated July 3, 2017, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to pay her the agreed upon equivalent of 119.55 hours of pay. Complainant states that no back pay has been paid. She requested that the Agency specifically implement its terms. In its August 3, 2017 FAD, the Agency acknowledged that Complainant had not been paid. The Agency concluded, nevertheless, that it complied. The Agency reasoned that it had exercised diligence to implement the terms of the settlement agreement and had "taken the appropriate actions to cure and implement the terms of the settlement agreement." The Agency found that "compliance with the settlement terms for the above-referenced case is being met." This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant states that she complied with all the Agency's requests to fill out additional documents and that she is entitled to an additional award of interest and attorney's fees to reimburse her for the damage caused by the delay in complying with the Agreement. Further, she states that the Agency has yet to pay her for the back pay which she estimates to be $3,366.00, plus interest. She also contends that it should not take ten months to provide the payment. 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, the Agreement required the Agency to pay Complainant for the equivalent of 119.55 hours. Her hourly rate is $28.16. As of August 30, 2017, she had not received the monies due to her under the Agreement that was executed on October 25, 2016. We find therefore that there was a breach and there is insufficient evidence showing that the Agency cured the breach after Complainant provided the Agency with notice of her breach claim. Showing diligence is not the same as providing proof of payment, consistent with the terms of the Agreement. We find the record supports Complainant's breach claim. The Agreement provided for a pay adjustment totally 119.55 hours of pay. There is no evidence that the Agency paid her the benefits to which she was entitled under the Agreement. When we find a breach, we have two options: 1) order specific performance or 2) order the reinstatement of the underlying complaint. In this case, Complainant has informed us that she seeks specific performance. In her brief in support of her appeal, she seeks the full benefit of the money that was due. Her request for specific enforcement seeks reimbursement for the losses incurred by the noncompliance to date. We do not grant her request for an award of compensatory damages resulting from the breach. We agree, however, that she is entitled to the full benefit of the consideration and grant her request for interest on the 119.55 hours of pay due to her and we grant her recovery of her attorney's fees. CONCLUSION Accordingly, we REVERSE the Agency's determination that it had not breached the terms of the subject settlement agreement. We REMAND the matter to the Agency for actions consistent with the Order below. ORDER Within sixty (60) days of the date this decision is issued, the Agency shall provide both Complainant and the EEOC Compliance Officer, as referenced below, with clear, understandable evidence that it has paid Complainant the full monetary benefit of 119.55 hours of pay, which is delineated in the settlement agreement as 24 hours of annual leave, eight hours of holiday pay and 87.55 hours of administrative leave for a total of 119.55 hours of pay. ATTORNEY'S FEES If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii), she is entitled to an award of reasonable attorney's fees incurred in the processing of this compliance action. The award of Attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency - not the Equal Employment Opportunity Commission, Office of Federal Operations - within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 January 24, 2018 __________________ 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 0120172704 2 0120172704