[Redacted], Nancey D, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 9, 2020

Appeal No. 2020005489 (E.E.O.C. Dec. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancey D,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020005489 Agency No. 4J-530-0047-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated August 10, 2020, finding that it was in compliance with the terms of a February 11, 2020 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On February 11, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter which had been pursued in the EEO process. The settlement agreement provided, in pertinent part, that: 2. Both Management and Employee agreed that for the next 60 days they will have three meetings to discuss employee’s concerns. These meetings will start on or about March 2, 2020, March 9, 2020 and April 20, 2020. By letter to the Agency dated May 5, 2020, Complainant alleged breach of provision 2. Specifically, Complainant claimed that “it was agreed at the ‘suggestion’ of [the observer/mediator] that there be 3 meetings set up with [Supervisor 1], myself and [union official].” 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. 2020005489 2 Complainant noted that Supervisor 1 initiated the first meeting on March 2, 2020, where Complainant discussed the reasons she filed the EEO complaint. Complainant stated that following the March meetings, she learned that Supervisor 1 would be leaving to another facility effective March 16, 2020, and with the “departure of [the supervisor] it is not possible for him to enforce the changes [they had discussed]. Once again we are back to running the unit with no regards to rules or safety.” Complainant acknowledged there was a second meeting with Supervisor 1 prior to his departure. However, she felt that with a new supervisor, everything they had discussed would be lost and she was “back to square one.” In its August 10, 2020 final decision, the Agency found no breach of provision 2. The Agency noted that the new supervisor (Supervisor 2) stated that on May 7, 2020, she informed Complainant and her union official that “she had set time for [Complainant] to have her final meeting. It was to take place on May 8th [2020] at 7am. [Complainant] stated that she did not know if she wanted to have the meeting with me because she felt that I already had my mind made-up.” Subsequently, Complainant opted out of attending the May 8, 2020 meeting. 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). 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 2 imposed upon the Agency the following affirmative obligation: to assure that Complainant and management would have three meetings to discuss Complainant’s concerns on the following dates on or about March 2, 2020, March 9, 2020 and April 20, 2020. We find that the Agency has substantially complied with provision 2. We acknowledge that on May 7, 2020, Supervisor 2 informed Complainant that she had set up time for the third and final meeting on May 8, 2020, instead of April 20, 2020. 2020005489 3 The Commission, however, has found that brief failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, when all required actions were subsequently completed. Mopsick v. Department of Health and Human Services, EEOC Appeal No. 0120073654 (August 17, 2009) (citing Lazarte v. Department of Interior, EEOC Appeal No. 01954274 (April 25, 1996)). Complainant opted out of attending the May 8, 2020 meeting because she did not believe Supervisor 2 was opened to making the changes in the unit that Complainant felt were necessary. Moreover, there was no provision in the settlement agreement that required management to adopt Complainant’s suggestions at the three meetings. CONCLUSION The Agency’s final decision finding no breach of provision 2 of the February 11, 2020 settlement agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 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, 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. 2020005489 4 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. 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, 2020 Date