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

Equal Employment Opportunity Commission

Dec 22, 2022

Appeal No. 2022004289 (E.E.O.C. Dec. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madelaine E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004289 Agency No. 4J-493-0058-18 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated July 7, 2022, finding that it was in compliance with the terms of a November 8, 2018 settlement agreement. The Commission accepts the appeal. 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 time, Complainant worked as a Supervisor, Customer Service at the Agency’s Spring Lake Post Office in Spring Lake, Michigan. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 8, 2018, Complainant and the Agency entered into a settlement agreement to resolve the matter. The November 8, 2018 settlement agreement provided, in pertinent part, that: (1) [Complainant] will follow her assigned schedule with Saturday/Sunday as her scheduled days off while in the Spring Lake Post Office. 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. 2022004289 2 (2) However, she may be required to work SDO (Scheduled Day Off) when needed. By letter to the Agency dated January 6, 2021, Complainant alleged breach and requested reinstatement of her underlying complaint. Specifically, Complainant alleged that the current Post Office Operations Manager (hereinafter “Operations Manager D”) has “consistently violated” the agreement by having her work on Saturdays and start at 7:00 a.m., instead of her usual 9:00 a.m starting time. Further, she asserted that Operations Manager D told her that she did not believe she was bound by the agreement because it was executed before she assumed the Operations Manager position. In its decision, the Agency found no breach. The Agency noted that Complainant believed the agreement was violated when she was made to work on Saturdays more than what was contemplated by the agreement and when her reporting time, of 9:00 a.m., was changed to 7:00 a.m. on numerous occasions. The Agency found that “[a] major issue in this dispute is whether the intent of the parties… was that [the] times “when needed” to work [her] SDO would be ‘rare’.” The Agency found that for the first year after the instant settlement agreement was executed, Complainant’s view of the settlement terms was followed. During that time, Complainant only was needed to work six Saturdays, half of which were during the December “Peak Season”. The next year, Operations Manager D took on the position and Complainant was required to work an increased number of Saturdays. Records indicated in the six months before alleging breach, Complainant worked eight Saturdays. The Agency reasoned that the increase merely reflected a change in management and the needs of the service. For instance, Operations Manager D believed that a promoted management official, rather than a 204 B temporary supervisor or clerk, should be present on Saturdays. Regarding starting at 7:00 a.m., the Agency stated that the agreement was silent regarding whether management could require Complainant to work additional time. The settlement agreement did not set forth specific work hours, so the Agency was free to modify them. Complainant filed the instant appeal. 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). 2022004289 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). Here, in her appeal brief, Complainant points to the discussions surrounding the execution of the settlement agreement. For example, she contends that the management representative was willing to permit the use of a 204B or lead clerk for Saturdays and, if one was not available, that the Postmaster would cover for a few hours and then be available by phone. According to Complainant, it would only be if a clerk and Postmaster were unavailable - a rare occurrence - that she would need to work on a Saturday. She also argues that she repeatedly asserted during the discussions that her schedule was 9:00 a.m. - 5:30 p.m., to which management agreed but noted that this schedule could change if she left the Spring Lake location. Moreover, Complainant explains that the mediator “was a nice lady of the age of 90, and the agreement was simply written to avoid her having to write a long, drawn-out settlement.” Complainant has failed to show that a breach occurred. As noted above, the intent of the parties shall be determined by the four corners of the agreement. The settlement terms simply required Complainant would “follow her assigned schedule with Saturday/Sunday as her scheduled days off while in the Spring Lake Post Office”. Additionally, the brief agreement also plainly stated that Complainant “may be required to work SDO (Scheduled Day Off) when needed.” Complainant herself acknowledges that for one year and a half, she “rarely, if ever, worked outside of her assigned schedule.” She argues that it was only with the assignment of a new Operations Manager, that this changed. The Commission has held that when a settlement agreement does not specify a time period within which an agency will execute its terms, it is required to act within a reasonable amount of time. See Garcy v. United States Postal Service, EEOC Appeal No. 01A24396 (Sept. 3, 2003); see also Complainant v. United States Postal Service, EEOC Appeal No. 0120140253 (Nov. 10, 2015) (change in work schedule following nine months in his desired schedule not found to breach agreement). As for Complainant’s other described intentions, she should have had them reduced to writing if she wanted them to be part of the settlement agreement. Finally, while Operations Manager D’s actions did not violate the November 2018 settlement, we note that Complainant has raised concerns of reprisal. We advise Complainant to contact an EEO Counselor if she wishes to pursue these new matters through the EEO process. CONCLUSION Based on the instant record, the Agency’s final decision finding no breach is AFFIRMED. 2022004289 4 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 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). 2022004289 5 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 22, 2022 Date