[Redacted], Hermila B, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Nov 2, 2022

Appeal No. 2022003819 (E.E.O.C. Nov. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hermila B,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003819 Agency No. 4E-940-0029-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated May 26, 2022, finding that it was in compliance with the terms of the April 12, 2022 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 April 12, 2022, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued in the EEO process. The April 12, 2022 settlement agreement provided, in pertinent part, that: 3. [Complainant] will use PS Form 3996 to request overtime and [Postmaster RF] will provide a written response as per the form. [Complainant] can also use her USPS scanner to text from the field to request overtime if necessary and [Postmaster RF] will respond, or any available management official will respond. 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. 2022003819 2 By letter to the Agency dated April 26, 2022, Complainant, through her representative, alleged breach of provision 3. Specifically, Complainant alleged that the Postmaster has not provided a written response to Complainant’s PS Form 3996s, and the Postmaster and other management officials failed to respond to Complainant’s text from the USPS scanner for overtime. Moreover, Complainant raised a separate matter, apart from the express terms of the settlement agreement. Specifically, she stated that she was not paid for attending mediation on April 12, 2022. In its May 26, 2022 final decision, the Agency found no breach of provision 3. The Agency also found that it had complied with the remaining three provisions of the subject agreement, which are not at issue in the instant appeal. Postmaster RF provided a statement in an Investigative Affidavit, dated May 13, 2022. Postmaster RF stated that he responded to Complainant’s overtime request on the PS Form 3996s. He stated when Complainant requested overtime from her scanner, management responded back to her and authorized her to continue with the overtime. Specifically, Therein, he stated that Complainant routinely does not hand PS Form 3996 directly to a manager or supervisor, but instead leaves it on a supervisor’s desk “at her own convenience.” Postmaster RF stated that, on most occasions, Complainant is on the street when these notices are on her supervisor’s desk. Postmaster RF acknowledged that he has not personally responded to Complainant via scanners, as he is not in the facility in a “closing role,” but that the closing supervisor (Employee S) has responded to Complainant. Further, the Postmaster stated that on April 12, 2022, she was paid for the entire day including her time in mediation. The instant appeal followed. ANALYSIS AND FINDINGS 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). 2022003819 3 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 note that provision 3 imposed upon the Agency the following affirmative obligation: to assure that Complainant will use PS Form 3996 to request overtime and the Postmaster will provide a written response as per the form. The provision provided further that Complainant can also use her USPS scanner to text from the field to request overtime if necessary and the Postmaster will respond, or any available management official. We find that the Agency has complied with provision 3, as addressed above in our discission of the affidavit of Postmaster RF. We note that the terms of provision 3 identify Postmaster RF as a party to whom Complainant could use a scanner to text from the field regarding overtime requests, but that “any available management official will respond.” This was corroborated by Postmaster RF’s statement that Employee S responding to Complainant. Moreover, documentary evidence of record, identified by the Agency as “Exhibits A and B,” reflect written explanations relating to overtime requests. Finally, we note that apart from an express breach claim, Complainant argues on appeal that she was not paid for mediation on April 12, 2022. The record reflects that Complainant was indeed paid for mediation time, as reflected in the Agency’s submission of a document identified as “Exhibit C.” If, however, Complainant nevertheless wants to pursue any new matters, she is advised to contact an EEO Counselor thereon. CONCLUSION The Agency’s final decision finding no breach of provisions 3 of the subject settlement agreement is AFFIRMED. 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. 2022003819 4 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 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 (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. 2022003819 5 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 November 2, 2022 Date