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

Equal Employment Opportunity Commission

Dec 16, 2020

Appeal No. 2020005098 (E.E.O.C. Dec. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Regina M,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020005098 Agency No. 4J-481-0192-12 DECISION On July 2, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated June 10, 2020, finding that the Agency complied with 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 was employed by the Agency as an Occupational Health Nurse, G-01 Step 15 at the Detroit CS District in Detroit, Michigan. On October 19, 2012, Complainant and the Agency entered into a settlement agreement to resolve equal employment opportunity (EEO) case no. 4J-481-0192-12. The agreement provided, in pertinent part, that: “(2) If [Complainant] works on DRAC [District Reasonable Accommodation Committee] she will be compensated at a higher level.” By correspondence to the Agency’s National EEO Investigative Services Office (NEEOISO) dated May 5, 2020, Complainant alleged that management breached term 2 when after she served in DRAC session for 3.5 hours on March 18, 2020, she did not receive higher level pay, as agreed. She requested the higher level pay. 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. 2020005098 2 The Agency’s EEO function reached out to Complainant’s first line supervisor (S1), the Detroit District Occupational Health Nurse Administrator, who Complainant identified as denying her the higher level pay. By email, S1 responded that since serving at DRAC meetings is within the scope of Complainant’s job description, she should not receive higher level pay. She referred to language in the October 2014 standard job description for Complainant’s position containing the duty of serving as “a resource and answers questions… concerning the following programs: …Reasonable Accommodation….” The record contains email communication among EEO staff trying to sort out the facts. They indicate the “staffing complement” changed since 2012. They also indicate that other occupational health nurses do not get higher level pay when serving at DRAC meetings, but don’t indicate if this was also so before the settlement agreement. The Agency issued a final decision determining it was in compliance with the terms of the settlement agreement. The Agency that the EEOC has ruled that the requirements of a settlement agreement cannot be expected to go on forever. Here, it found that management complied with the settlement agreement for eight years. It stated that two years after the parties entered into the settlement agreement, the standard job description for Complainant’s position changed to include the duty of the Reasonable Accommodation program, hence DRAC is no longer considered higher level work requiring hire level pay. Given this change and the passage of time, the Agency determined it was in compliance with the settlement agreement. The instant appeal followed. 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). On appeal, Complainant argues that when she entered into the settlement agreement, the Nurse Administrator job was vacant, and this has occurred periodically, including for a two and a three- year span. Complainant argues that each time the Nurse Administrator position went vacant, she was pressured to perform the higher level Administrator’s duties so she petitioned the Manager of Human Resources for higher level pay when serving in DRAC meetings. Complainant argues and references that in preparation for taking a two-week vacation starting on May 22, 2018, a predecessor of S1 delegated a list of Nurse Administrator duties to her. She submits a list which included completing the declining balance log as invoices arrive, processing any received Concentra Department of Transportation exams, and serving at a DRAC meeting. Complainant submits documentation showing she received higher level pay for the periods covering January 19, 2019 - February 1, 2019, and February 2, 2019 - February 15, 2019, apparently pursuant to a grievance settlement agreement. She argues that when the Nurse Administrator responsibilities are delegated to her, she receives higher level pay. 2020005098 3 The Commission has repeatedly held that where an individual enters into a settlement agreement for a position without any specific term as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in the exact position ad infinitum. This rule has been applied when in combination with changed circumstances, the Commission deems the settlement agreement to have been fulfilled. fulfilled. See Calvetti v. Air Force, EEOC Appeal No. 01A34461 (Nov. 14, 2003) (the agency’s abolishment via a reduction in force of the complainant’s position he was placed in five years prior per a settlement agreement did not constitute breach); Elvera S. v. USPS, EEOC Appeal No. 0120181102 (May 3, 2018) (about three years after the complainant’s work schedule was changed to 9:30 AM to 6:30 PM per a settlement agreement, it was switched to 10:30 AM to 7:30 PM. The agency’s operational needs changed and her performance of window clerk duties was needed until 7:00 PM or 7:30 PM, resulting in daily overtime which was inefficient. This did not constitute breach). S1 and Complainant disagree on whether serving at DRAC meetings is part of Complainant’s job, or if DRAC is a higher-level duty with higher level pay, and if in practice serving at DRAC meetings is considered part of the Occupational Health Nurse position. More significantly, the record does not show whether these things changed after the parties entered into the settlement agreement - nor whether Occupational Health Nurses whom the Agency purports now are not paid at a higher level when serving at DRAC meetings also did not receive this higher level of pay before the settlement agreement, which would point away from finding a change in circumstances regarding Complainant and the Agency. There is insufficient information in the record to independently determine if there have been changed circumstances sufficient to show that the requirements of term 2 of the settlement agreement should be deemed to have already been fulfilled. Since there are no statements from S1 and Complainant in the record or anyone else who could corroborate their accounts and the record lacks sufficient information on whether there has been a change in circumstances since the settlement agreement was signed, we find the Agency needs to gather this information. Moreover, the standard job description for Complainant’s position that was in effect when the parties entered into the settlement agreement is not in the record. Thus we cannot verify the finding in the FAD that the job description was changed in October 2014, by adding the responsibility of being a resource and answering questions regarding the Reasonable Accommodation program. While S1 contended that serving at DRAC meetings is part of this responsibility, we don’t know if the Reasonable Accommodation resource language was already in the job description in effect when the parties entered into the settlement agreement. The Agency should obtain this position description for the record. The FAD is VACATED. The matter is remanded to the Agency for compliance with the Order below. 2020005098 4 ORDER The Agency shall conduct a supplemental inquiry to gather additional evidence as identified in this decision above. Thereafter, it shall make a new determination on Complainant’s breach claim. If the Agency determines the settlement agreement was breached as alleged, it shall both indicate this in writing and start taking measures to ensure management will continue to comply with the settlement agreement within 60 calendar days of the date of this decision, and within 90 calendar days from the date of this decision pay Complainant 3.5 hours at the higher rate less the lower rate it already paid her. If the Agency determines it is in compliance with the settlement agreement, it shall issue a new FAD appealable to the EEOC, Office of Federal Operations within 60 calendar days of the date of this decision. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2020005098 5 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. 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. 2020005098 6 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. 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 16, 2020 Date