[Redacted], Dina F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 5, 2021Appeal No. 2021001488 (E.E.O.C. Mar. 5, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dina F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021001488 Agency No. 4C080008520 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a October 16, 2020 final agency decision (“FAD”) that found the Agency 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 Letter Carrier at the Tuckerton Post Office in Tuckerton, New Jersey. On July 8, 2020, Complainant and the Agency entered into a negotiated, binding settlement agreement (“Agreement”) to resolve a discrimination complaint that Complainant raised with an EEO Counselor. The responding management officials included a Supervisor, Customer Service (“S2”) and the Postmaster (“PM”). In addition the Agreement makes reference to a coworker of Complainant’s (“C1”) and the Union President. The Agreement contained the following three stipulations: 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. 2021001488 2 1. The parties agree to hold a meeting, C1, the Union President, S1, and PM, to discuss the interactions between C1 and Complainant in an attempt to address the workplace conduct. The meeting will take place within five days from the date C1 returns from annual leave. 2. Management at the Tuckerton Post Office will ensure that all employees at the facility receive a safety talk on or before August 30, 2020, specifically addressing harassment and Covid-19 safety requirements. 3. Complainant, the Union President, S1, and PM will meet biweekly to discuss the status of the work environment. On September 8, 2020, Complainant notified the Agency in writing that it was in breach of the Agreement. For Stipulation 1, Complainant concedes that S1 and PM met with C1, but explains that they did not do so until C1 had been back for nearly 3 weeks. In addition the meeting lasted only about 5 minutes, and had no impact on C1’s conduct toward Complainant. Complainant alleged that the Agency was in breach of Stipulations 2 and 3 because no safety talks or bi- weekly meetings had occurred or been scheduled, despite her repeated requests. In its FAD, the Agency concluded that following an opportunity to cure, pursuant to 1614.504(b), it was not in breach of the Agreement. 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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). The regulation set forth in 29 C.F.R. 1614.504(b) provides that after notification by a complainant of alleged noncompliance with a settlement agreement, that agency should resolve the matter and respond to the complainant. 2021001488 3 The Commission has interpreted this provision as allowing the agency the opportunity to cure any breach that may have occurred. See Covington v. United States Postal Serv., EEOC Appeal No. 01913211 (Sept. 30, 1991). The Commission has found substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009)(citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274(Apr. 25, 1996)), Sortino v. U.S. Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996), (citing Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993)) (two-week delay in transfer of official letter of regret rather than letter of apology found to be substantial compliance). The Commission has previously found that bad faith in negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Security Admin., EEOC Request No. 05950169 (June 12, 1997); Dupuich v. Dep't of the Army, EEOC Appeal No. 0120073901 (Nov. 2, 2007). The Agency has not established substantial compliance with Stipulations 1, 2, and 3 because it has not shown that all required actions under the Agreement were subsequently completed once it was notified that it was in breach of the Agreement. In addition, the evidence supports that the breach undermined the purpose or effect of the Agreement, giving rise to new allegations of discrimination and retaliation. Stipulation 1 Complainant alleges that the meetings were to begin within five days after her alleged harasser, C1, returned on July 27, 2020, yet they were not held until August 14, 2020, during which time, C1 “continued to mock, tease, and violate [Complainant’s] personal space.” She states that PM and S1 were aware, as her work area was directly in front of their office, and because she notified the Shop Steward, S1 and PM each day that C1 was harassing her. Yet, according to Complainant, the meeting to address C1’s interactions with Complainant was delayed, and then rescheduled. Complainant states that the meeting was initially scheduled on August 6, 2020, then August 11, 2020, until it was finally held on August 14, 2020. By Complainant’s account, the meeting lasted all of 5 minutes, and afterward, C1 left the office smiling, and the union steward, who attended the meeting instead of the Union President, simply told Complainant, “well, we’ll see how things go.” The next day, C1 made a mocking comment to Complainant’s coworker about the meeting in Complainant’s presence, indicating to Complainant that the meeting was ineffective. When Complainant notified S1 and PM about the comment, as the meeting was supposed to be confidential, nothing was done. 2021001488 4 With respect to the timing of the meeting, the Agency contends that it demonstrated substantial compliance, given the repeated scheduling efforts and because it is undisputed that the meeting occurred. However, the Agency has not offered evidence that S1 and PM made a good faith effort to discuss C1’s conduct toward Complainant with him. The Agency provides documentation of attendance but no meeting notes, or signed statement memorializing the content of the meeting. In the record, PM and S1 only confirm that the meeting was held, and offer no details on what was discussed with respect to C1’s conduct toward Complainant. Stipulation 2 The Commission’s standard for establishing compliance with an order to provide training requires that the Agency provide both an “[a]ttendance roster at training session(s) or a narrative statement by an appropriate agency official confirming training hours, course titles and content, if necessary and a “[c]ourse description providing some indication that the training was appropriate for the discrimination found or commensurate with the order.” See EEOC Management Directive 110 for 29 C.F.R. Part 1614 (“MD-110), Appx. Q (Rev. Aug. 5, 2015). Here, to establish compliance with Stipulation 2, the Agency must provide an attendance roster with signatures or certificates of completion from all employees at the Tuckerton Post Office, and training materials “addressing harassment and Covid-19 safety requirements.” According to Complainant, the standup talks never occurred. Instead, she alleges that “[h]andouts were left on carrier's cases; they were not read aloud or discussed. Carriers weren't given time to read them or ask questions; reading them was completely voluntary.” She points out that PM and S1 have not demonstrated that all employees in their office were even provided with the handouts. As proof of its compliance with Stipulation 2, the Agency provided the training materials and signed statements by PM and S1 stating that they provided training in accordance with the Agreement. The training materials included a 3-page handout about the No FEAR Act which described discriminatory harassment and EEO rights, and a handout from an April 6, 2020 Mandatory Standup Talk discussing CDC Mask-wearing guidelines and social distancing. S1’s signed statement provided that he gave a service talk on July 11, 2020 including “instructions for mask wearing.” PM’s statement also confirmed that he provided a service talk (date not specified) on the topic of harassment and the No Fear Act. Although this satisfies the evidentiary requirement that the training materials addressed harassment and Covid-19, the Agency failed to establish that all employees received the talk and that it was given in a manner in accordance with the Agreement. Stipulation 3 For Stipulation 3, Complainant alleged that the Agency was in breach because, two months after entering the Agreement, S1 and PM had yet to schedule a bi-weekly meeting, despite her repeated reminders to do so. 2021001488 5 Complainant states that she was harmed by the Agency’s initial failure to comply with Stipulation 3 because C1 continuously harassed her and S1 and PM delayed the biweekly meetings that were in part intended to address the harassment. She alleges that S1 and PM acted in bad faith because they were aware of the harassment and she reminded them of the meetings, yet they failed to schedule meetings until she notified the Agency of breach. She further alleges bad faith by refuting S1 and PM’s explanation that her absences caused them to delay holding the meetings, and arguing that S1 and PM prevented them from meeting by taking retaliatory disciplinary action, sending her home on the day the first meeting was scheduled. Complainant also argues that the meetings did not comply with their stated purpose in the Agreement, to “discuss the status of the work environment.” Rather, PM and S1 restricted the meeting topic to how Complainant felt the other carriers are treating her, and did not allow Complainant to voice her concerns regarding her “work environment.” For instance, Complainant was concerned that Covid-19 protocols are not being followed. As evidence that it substantially complied with Stipulation 3, the Agency provided meeting attendance sheets signed by the Union President, Complainant, S1 and PM, confirming that meetings were held on September 29, 2020, October 6, 15, and 29, 2020, November 12, 2020, December 3, and 17, 2020, and January 7, 2021. However, the Agency has not offered evidence that it engaged in a good faith effort to timely schedule the meetings, nor has it shown that the meetings addressed “the status of the work environment.” There are no meeting notes for September 29, 2020 and the November 12, 2020 meeting notes state in their entirety, “issue with this and will open new EEO.” Otherwise, the notes for the remaining meetings are all statements such as “no issues” and “no issues with fellow carriers,” or variations to that effect. This is insufficient to establish compliance with Stipulation 3. New Allegations of Reprisal and Discrimination do not Constitute Breach Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. In order to pursue the additional harassment, disability discrimination, and retaliation claims raised on appeal, Complainant must raise them with an EEO Counselor pursuant to 29 C.F.R. § 1614.105. In the September 8, 2020 breach notice Complainant submitted to an EEO Counselor, Complainant raised new allegations of of discrimination, retaliation and harassment in addition to the breach at issue in this Decision.2 2 Complainant also expresses fear of exposure to Covid-19 alleging that a fellow carrier tested positive. She states that “[t]his office has not followed covid19 protocol since the start of the pandemic. People are allowed in doors without a face covering and six feet apart is impossible to maintain in a small office.” As the EEOC does not enforce workplace safety matters, we note that Complainant may also want to contact the Agency’s Inspector General’s office to report her concerns. 2021001488 6 Specifically, she alleges that she endures daily harassment by a coworker named in the underlying complaint, who grins and stares at her in an intimidating manner, mocks her and violates Covid-19 protocol while talking to the coworkers on either side of her for 20 minute intervals. Although her work space is directly in front of PM’s office and she reports the harassment to S1 and PM, nothing changes. Complainant also alleges that or about August 17, 2020, the same day she requested a biweekly meeting with S1 and PM, she was written up and removed from her route until the Union got her reinstated the next day. She further alleges that on August 29, 2020, she was issued a proposed removal because of the incident, which was then rescinded it on September 3, 2020. Complainant experienced so much stress that she took a week of FMLA leave. In her November 12, 2020 appellate brief to this Commission, Complainant not only addresses her breach claim, but also maintains that she continues to experience harassment and discrimination by the Agency. She alleges that S1 and PM have been using disciplinary actions to retaliate against her for engaging in protected EEO activity because since filing the underlying complaint 6 months earlier, she has been written up five times, including an October 17, 2020 14-day “paper suspension.” Prior to engaging in EEO activity, Complainant was subject to disciplinary action once in three years when a tree branch damaged her truck. In her appellate brief Complainant also provides a September 14, 2020 narrative statement, alleging that S1 and PM further retaliated by harassing her and disregarding her reasonable accommodation. Specifically, Complainant states that she worked 40 minutes to 1 hour overtime from September 8, 10, 11, and 12, 2020, even though she repeatedly reminded S1 and PM that she had work restriction of an 8 hour day (no overtime) schedule as a reasonable accommodation for her disability. When her shop steward attempted to convene a meeting with Complainant, S1, and PM to discuss her accommodation, Complainant states that “the meeting got tense and was canceled.” In addition, S1 mocked her, for her concerns about Covid-19 and her reasonable accommodation. On September 12, 2020, S1 denied Complainant’s reasonable accommodation in such a manner that Complainant experienced a panic attack. Any new claims of reprisal and discriminatory harassment within the September 8, 2020 breach notice should have been addressed in a separate EEO complaint, since she raised the matter with an EEO Counselor. If the Agency has not done so, it must provide Complainant’s claims to an EEO counselor for processing, and instructions to consider September 8, 2020 as the date of EEO contact for those claims. With respect to new claims of reprisal and discriminatory harassment within the November 12, 2020 appellate brief, including the September 14, 2020 narrative statement, is Complainant has not done so already, and wants to pursue these allegations in an EEO Complaint, she must do so by contacting an EEO Counselor pursuant to 29 C.F.R. § 1614.105. The Agency may opt to combine new claims if it finds they are like and related to any open EEO complaint it is processing for Complainant. 2021001488 7 We decline to make a determination here as to the timeliness of Complainant’s allegations in the November 12, 2020 appellate brief, but note that for harassment allegations, the Supreme Court of the United States has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat’l R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061 (Jun. 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. To calculate timeliness for an alleged denial of reasonable accommodation, it is the Commission’s position that "because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it." EEOC Notice 915.003 (July 21, 2005), Harmon v. Office of Personnel Management, EEOC Request No. 05930365 (Nov. 4, 1999). We remind the Agency that under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. §1614.101; Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). CONCLUSION Accordingly, the agency's decision finding no breach of the settlement agreement is REVERSED and the case is REMANDED to the agency for implementation of the agreement. ORDER (C0618) Within thirty (30) calendar days of this Decision, the Agency is ORDERED to specifically enforce the July 8, 2020 settlement agreement it entered into with Complainant, and demonstrate full compliance with all three stipulations to this Commission as directed below. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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). 2021001488 8 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021001488 9 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021001488 10 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 March 5, 2021 Date Copy with citationCopy as parenthetical citation