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

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2022004445 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yvette H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004445 Agency No. 4G-700-0213-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated June 30, 2022, finding that it was in compliance with the terms of a March 8, 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 time, Complainant worked as a Secretary for the Manager of Operation Programs Support at the Agency’s Operations Office in New Orleans, Louisiana. On March 8, 2021, Complainant and the Agency entered into a settlement agreement to resolve matters which had been pursued in the EEO complaint process. The March 8, 2021 settlement agreement included, in pertinent part, the following provision: Provision 3E. Complainant will be allowed to telework subject to the applicable telework MOU [Memorandum of Understanding] for the APWU [American Postal Workers Union] craft, in existence at the time, and subject to the recommendations of her health care provider. Complainant’s duties will be assigned as by her supervisor/manager. 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. 2022004445 2 Complainant will use a Postal-provided computer with, VPN access, to accomplish her telework. Complainant’s work phone will be forwarded to Complainant’s personal cell phone during Complainant’s duty hours. By letter dated June 30, 2022, Complainant’s manager (M1) notified Complainant that she would no longer be able to telework in her current position. In the letter, M1 indicated that Complainant’s reasonable accommodation provided her with full-time telework from home to perform her duties as Secretary for Manager Post Office Operations. M1 further indicated that, at the time the agreement was executed, Complainant had been assigned supplemental duties which could be performed from home which were also provided to many other staff members due to COVID-19 related issues. However, M1 explained that by June 2022 these temporary duties no longer existed. M1 also contended that the APWU MOU on telework had subsequently changed from the one in effect at the signing of the agreement. M1 indicated that the March 2021 settlement agreement specified that Complainant’s ability to telework was subject to “the applicable telework MOU for the APWU craft.” Consequently, M1 informed Complainant that he reviewed the Agency’s currently modified APWU and determined that there were no provisions that now addressed the assignments that had previously supported Complainant’s telework assignments. Consequently, M1 concluded that permitting Complainant to perform all the essential functions of her current position as Secretary for Manager Post Office Operations from a remote location was not a reasonable accommodation because all the essential functions of the position could not be performed remotely. Therefore, M1 required Complainant to return to the office and informed her that her telework assignment would terminate effective July 4, 2022. In a July 14, 2022, email, Complainant alleged breach of the March 2021 settlement agreement. Complainant noted that the settlement agreement provided that she “will be allowed to telework … and subject to the recommendations of her health care provider.” Therefore, Complainant argued that M1’s June 30, 2022, letter violated the settlement provision because he terminated her telework and required that she report to work on July 5, 2022. When Complainant failed to receive a response from the Agency regarding her July 14, 2022, breach allegation, she filed the instant appeal. Therefore, in this instance, we shall construe the June 30, 2022, letter as the Agency’s final decision. On appeal, Complainant asserts that M1 improperly ended her ability to telework. Complainant argues that the Agency failed to seek the recommendation from her healthcare provider regarding her ability to return to the office as required by the March 2021 settlement agreement regardless of her original position being abolished and, regardless, that the old MOU was no longer in effect. 2022004445 3 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). The record reflects that the March 2021 settlement agreement provided that Complainant’s ability to telework was “subjected to the applicable telework MOU for the APWU craft, in existence at the time, and subject to the recommendations of Complainant’s healthcare provider.” Consequently, Complainant’s ability to telework is dependent on both the MOU and her healthcare provider’s recommendations. In this case, the record reflects that the MOU that was in existence at the time the telework agreement was executed in March 2021 was no longer in effect when Complainant’s position was abolished in May 2022 and when she resumed a new position under M1 in early June 2022. Additionally, the record further reflects that M1 explained that the current MOU governing Complainant’s new position did not provide for full- time telework. The Commission has held that where an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. See Holley v. Dep't of Veteran Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Papac v. Dep't of Veterans Affairs, EEOC Request No. 05910808 (Dec. 12, 1997). See also, Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 30, 1991); Hamilton v. U.S. Postal Service, EEOC Appeal No. 01A22268 (July 5, 2002) (Commission finds that the settlement agreement was not breached when, after five months, complainant's schedule was changed.); Worrall v. U.S. Dep't of the Army, EEOC Appeal No. 01996285 (Jan. 8, 2001) (complainant's placement into another position six months after the placement pursuant to the settlement agreement, was an action outside the scope of the agreement and was not a breach). Here, it is undisputed that the Agency complied with the terms of the settlement agreement for more than a year after its execution. However, it appears that by June 2022, both the APWU MOU on telework and Complainant’s job had changed, and management no longer believed all the essential functions of her current work assignments could be performed remotely. 2022004445 4 Based on the lack of express timeframes in the settlement agreement, we conclude the Agency had substantially complied with the terms of the agreement for a reasonable period of time until subsequent events changed circumstances. Therefore, we do not find Complainant has established a breach of the settlement agreement. However, we find that Complainant has also raised a new allegation of failure to accommodate her disability by not permitting her to continue to telework, a subsequent act of alleged discrimination following the execution of the settlement agreement. EEOC Regulation 29 C.F.R. § 1614.504(c) provides, in pertinent part, that subsequent claims of discrimination that violate a settlement agreement should be processed as separate complaints. To the extent that Complainant wishes to pursue a new failure to accommodate claim, she is advised to contact an Agency EEO counselor. For timeliness purposes, the Agency should consider Complainant's July 14, 2022 email alleging breach to be her initial EEO counselor contact for that claim. See Pierce v. U.S. Postal Serv., EEOC Appeal No. 0120083208 (Sept. 24, 2008). CONCLUSION In sum, we conclude that Complainant has failed to establish a breach of the March 8, 2021 settlement agreement she had with the Agency. 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). 2022004445 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. 2022004445 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 March 29, 2023 Date