[Redacted], Spencer T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service – Eastern Area, Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2020005491 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Spencer T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service - Eastern Area, Agency. Appeal No. 2020005491 Agency No. 1C-371-0009-15 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision (FAD), dated August 3, 2020, finding that it was in compliance with the terms of 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 compliance action, Complainant had recently retired from his employment as a Motor Vehicle Postal Support Employee (PSE) Tractor Trailer Operator (TTO) at the Agency’s Processing and Distribution Facility in Memphis, Tennessee. On January 7, 2015, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced EEO matter. The settlement agreement provided, in pertinent part, that: (1) The parties acknowledge that a computer problem caused [Complainant] a severe shortage in rank designation and thus pay compensation. This affected his uniform allowance, sick pay, annual pay, overtime pay and pre and post tour 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. 2020005491 2 (2) [A named employee - Ms. A] shall submit the correct form to compensate [Complainant] for two years of uniform allowance. (3) [A named employee - Mr. B] shall submit a form 8039 to secure [Complainant’s] 208 hours of sick pay and shall calculate his missing annual pay. . . (4) [Two named employees - Ms. A and Ms. G)] shall manually calculate the pay differential between PSE and NTFT overtime eligibility (including pre and post tour pay) and submit same to Payroll by February 28, 2015. (5) If [Complainant] has not received the corrected compensation within 8 weeks from February 28, 2015, he shall notify [Mr. B, Ms. G and Ms. A]. On September 18, 2015, the parties agreed to an amendment to the January 7, 2015 mediation settlement agreement. In lieu of the paragraphs that stated Ms. A and Ms. G shall manually calculate the pay differential by February 28, 2015, the parties agreed to the following replacement language: (6) Management and counselee’s representative have agreed to come to total settlement hours (522.40 OT and 40.54 POT and an OOS lump sum of $2,088.90) for a total of $20,328.02 to be submitted for payment by September 22, 2015. The parties signed the Agreement Addendum (dated September 18, 2015) on September 22, 2015. The record shows that, thereafter, Complainant received a check, dated October 28, 2015, in the amount of $13,690.91, payable to Complainant, which cleared the bank. By letter to the Agency dated July 7, 2020, Complainant alleged that the Agency was in breach of the settlement agreement, because the Agency was seeking the recovery of $14,420.10, which Complainant contends he received under the terms of the original January 7, 2015 Agreement. As background, on March 3, 2017, Complainant received a “Letter of Demand - Indebtedness.” The letter sought the retrieval of monies for annual leave and sick leave received from October 20, 2012 to October 5, 2013. The initial request stated there was a salary overpayment of $11,339.70 for the pay period 23/2012 to 26/2016 and advised Complainant of his appeal rights. The explanation for the salary overpayments stated “Salary overpayments from pay period 23/2012 - 26/2016: “Per multiple form 50s processed by the Greensboro HRSSC changing Complainant’s conversion to career date from October 20, 2012 to October 5, 2013. Employee history, salary, level, step, terminal leave payment and leave record updated to reflect conversion date of 10/5/2013. - 9634 AES 04/2017 payroll related debt.” Complainant filed a grievance on the matter. The grievance was denied. 2020005491 3 Complainant learned, via an email dated May 26, 2020, about the seniority date discrepancy. As a consequence of the way the corrections under the Agreement were processed, Complainant’s seniority date was changed from October of 2012 to October of 2013. The Agency based the calculations from the pay period 23/2012. Complainant stated, “this is the same pay period that management alleges they began to overpay [him].” In his breach claim, Complainant also asserted that the Agency and Union were working together against him and that the Agency waited until after Complainant’s retirement to attempt to recover a large portion of the settlement paid to him years ago, but it did not provide him further information. He contends that he did not become aware of the breach issue until he received information showing the calculations. Complainant is asking for $50,000 in compensatory damages. In its FAD, the Agency found that Complainant’s 2020 breach claim was untimely filed and that the fault lies with the union that requested that management change Complainant’s seniority date. In addition, the Agency determined that it complied with the Agreement. The instant appeal from Complainant 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 (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, the Agreement Addendum fixed the monetary recovery figure of $20,328.02, which was to be submitted for payment by September 22, 2015. There is no claim that the required amount was not submitted for payment. Complainant received the payment and Complainant did not file a breach claim to challenge the money that he was provided in 2015. 2020005491 4 We can see that the record in this matter is confusing. This record includes information regarding another individual with the same last name as Complainant and the record suggests that the 2012 date may have been the result of an earlier 2014 settlement agreement that had been referenced at the arbitration hearing. Management was also making adjustments for multiple employees, at the urging of the union. We acknowledge Complainant’s assertion that he was unaware of the breach before May 26, 2020, when he learned that the Agency based the calculation from the pay period 23/2012, which was the same pay period when management claimed an overpayment. While we are sympathetic to Complainant’s concerns in this unusual situation, we note that Complainant received notice on March 14, 2017, when the USPS issued a Letter of Demand. He did not act on his breach claims until the Department of Treasury sent the notice to collect on May 20, 2020. Finally, even interpreting that the Agreement, entered on January 7, 2015, was intended to compensate Complainant for two years of the uniform allowance, that would not require payments back to 2012. For all of these reasons, we find that Complainant failed to show that the Agency breached its obligations as defined under either the January 7, 2015 or under the September 18, 2015 agreement. To the extent that Complainant wishes to raise issues that occurred after the September 18, 2015 agreement, we find they are outside the scope of the Agreement. CONCLUSION For these reasons, we AFFIRM the Agency’s final decision. 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). 2020005491 5 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. 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. 2020005491 6 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 February 2, 2021 Date