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

Equal Employment Opportunity Commission

Mar 7, 2023

Appeal No. 2023001174 (E.E.O.C. Mar. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristofer E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023001174 Agency No. 1F-841-0069-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated November 22, 2022, finding that it was in compliance with the terms of a January 20, 2021 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant period, Complainant worked at the Agency’s Post Office in Colorado Springs, Colorado. On January 20, 2021, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued in the EEO process. The January 20, 2021 settlement agreement was executed by Complainant and Complainant’s Maintenance Manager (“M1”). The settlement agreement stated, in pertinent part, that: The parties agree that Counselee and management listed above (M1) will meet every two weeks to discuss issues of concern from either party for a period of one (1) year beginning January 20, 2022. The parties will set a mutually agreed upon time and day for these meetings to be held during Counselee’s regular scheduled 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. 2023001174 2 workday. The employee will be allowed to take 80 consecutive hours of earned Sick leave which will be scheduled beginning February 1, 2022, management agrees documentation will not be required for this time frame. By letter received by the Agency on October 18, 2022, Complainant alleged breach of the January 20, 2021 settlement agreement. Complainant alleged that management failed to meet with him to discuss summer annual leave, out of state schools, and illness. Specifically, Complainant noted that after June 2022, no more meetings were scheduled until November 2022. In its November 22, 2022 final decision, the Agency found no breach of the agreement. The Agency acknowledged that Complainant’s last meeting occurred on June 10, 2022. However, the Agency explained that subsequent meetings did not occur after this date due to Complainant’s and M1’s scheduling conflicts. The Agency noted that M1 was away from the office attending training late June 2022, and that when she returned to the office in July 2022, Complainant was out of the office on leave. Consequently, the Agency indicated that there was no meeting in July 2022. The Agency further acknowledged that no meetings occurred in August 2022 or September 2022 as M1 had to attend mandatory out-of-state work conferences and upon her return, had to take sick due to major health issues which she had made Complainant aware. However, the Agency explained that a November 2022 meeting was scheduled and then rescheduled for another date in November, but Complainant failed to attend. Therefore, the Agency determined that no breach had occurred as both Complainant and M1 were unavailable during this period. The instant appeal followed. On appeal, Complainant argues, through counsel, that another manager could have arranged to meet with him during the period that M1 was unavailable. Complainant further argues that M1 had scheduled a meeting in October 2022, however, Complainant was out of the office on annual leave. Regarding the November 2022 meeting, Complainant explains that M1 required that he complete all his preventive maintenance tasks before he attended the meeting, and he did not complete all of these tasks until after the scheduled meeting had ended. 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). 2023001174 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, the settlement agreement required that Complainant and M1 attend meetings every two weeks. However, the record reflects that both Complainant and M1 had scheduling conflicts that inhibited their ability to meet regularly. Complainant asserted that another management official could have met with him during M1’s absences. The terms of the settlement agreement, however, specifically stated that the agreement to meet was between Complainant and M1, and not between Complainant and any available management official. Therefore, the Agency was not required to instruct another management official to participating in the regular meetings. Additionally, the record reflects that M1 attempted to schedule meetings with Complainant in July 2022, August 2022, September 2022, and October 2022. M1, however, could not schedule any meetings because either Complainant was on annual leave or M1 was out of the office for out-of-state training or was on sick leave. Moreover, regarding the one meeting in November 2022 that M1 was able to schedule, Complainant admits that he did not attend this meeting. Aside from Complainant’s testimony, there is insufficient evidence to collaborate Complainant’s statement that M1 informed him that his November 2022 meeting was contingent upon completion of his work assigned that day. Nevertheless, Complainant acknowledged on appeal that he had a meeting with M1 in December 2022. Consequently, there is no indication that the Agency failed to comply with the terms of the agreement which were contingent upon Complainant’s availability and willingness to attend. CONCLUSION The Agency’s final decision finding no breach of the January 20, 2021 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. 2023001174 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. 2023001174 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 March 7, 2023 Date