Lenita T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 26, 20180120180343 (E.E.O.C. Sep. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenita T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120180343 Agency No. 1J-461-0013-02 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated October 18, 2017, 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 complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Indianapolis Processing and Distribution Center in Indianapolis, Indiana. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 3, 2001, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (1) Management agrees to abide by the Permanent Rehabilitation Job Offer- IOD dated November 6, 20012; and 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. 2 Pursuant to the Permanent Rehabilitation Job Offer-IOD, dated November 6, 2001, Complainant was limited to lifting/carrying 10 pounds frequently and 25 pounds occasionally; no sweeping; and 0120180343 2 (2) The Distribution Operations Supervisor (DOS) will speak to the supervisors in order to attempt to locate Complainant in a permanent area so she is not moved from case to case. By letter to the Agency dated October 5, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to allow her to work as a Safety Captain, required her to work more than four hours per day, and did not return her to the hours of 12:00 midnight to 8:30 a.m. Complainant advised that the settlement agreement was breached on May 23, 2003, but she did not elaborate on what specific actions breached the settlement agreement on that date. However, she reported that the Agency breached the settlement agreement again on August 23, 2003, when she was told to clock out and instructed to complete a wage-loss form. Complainant added that on the following night, her scheduled hours changed from a begin time of 12:00 midnight and over the course of the next few years, the Agency failed to adhere to her work restrictions or schedule. According to Complainant, in violation of the settlement agreement, by December 2007, the Agency had returned her to manually casing letter mail. Complainant reported that on March 9, 2009, she was told to go home because her work restrictions could not be accommodated and she did not return until December 1, 2012. She added that on subsequent occasions in 2013 and 2016, she was not allowed to work jobs within her accepted work restrictions and her work hours were changed. In its October 18, 2017 FAD, the Agency concluded that the December 3, 2001 settlement agreement had not been breached. The Agency reasoned that Complainant’s allegations were untimely, as the settlement agreement provided that breaches must be reported in writing within 30 days of the alleged breach and Complainant did not bring forth her allegations for several years. The Agency argued that the filing deadline for such a breach claim lapsed several years ago, as Complainant was working under a different schedule as early as October 2007. Nevertheless, the Agency addressed Complainant’s allegations that the Agency breached the settlement agreement by requiring her to work outside of her restrictions. Specifically, the Agency noted that pursuant to Complainant’s report that her restrictions became more onerous in 2003, the medical restrictions contained in the Permanent Rehabilitation Job Offer were no longer applicable. The Agency further asserted that Complainant accepted a Limited Duty Job Offer on December 13, 2012, which nullified the Permanent Rehabilitation Job Offer. The Agency also noted that Complainant withdrew a breach allegation regarding her schedule change on June 30, 2016. use of a chair with a back. The agreed upon work hours were 12:00 midnight to 8:30 a.m. (or as posted by Wednesday preceding the weekly schedule). 0120180343 3 As for Complainant’s contention that the Agency breached the settlement agreement when the DOS failed to speak to the supervisors in order to attempt to locate a permanent work area for Complainant, the Agency stated it would be manifestly unfair to require the DOS to respond to a breach allegation and account for his actions regarding events so many years earlier. The Agency concluded that due to Complainant’s delay in presenting the breach allegations, which was long after the settlement agreement was in full force and effect, Complainant had made it impossible to cure any breach. Moreover, according to the Agency, Complainant’s retirement in May 2017 ended the Postal Service’s legal obligation to attempt to do so. 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). 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 parties entered a settlement agreement in December 2001. Over 16 years later, Complainant alleges the Agency violated the provisions of the settlement agreement by failing to adhere to her work schedule and work restrictions. Complainant further alleges the DOS failed to speak with supervisors in an attempt to place Complainant in a permanent area where she was not moved from case to case. At the outset, we note that the settlement agreement included the following provision: “Any alleged breach arising out of the implementation of or compliance with this settlement agreement must be reported in writing to the EEO Office within 30 days of the alleged breach.” This provision is consistent with EEOC Regulations. See 29 C.F.R. §1614.504(a). The Commission has held that individuals using the EEO process must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45029 (Nov. 18, 2004) (finding that the doctrine of laches applied when Complainant waited over two years from the date of the alleged discriminatory events before 0120180343 4 contacting an EEO Counselor); O’Dell v. Dep’t of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). Here, as noted, Complainant and the Agency signed the agreement in December 2001. By her own admission, Complainant complained of breach multiple times in the intervening years. However, she waited over 16 years, until October 2017, to bring pursue her claim of breach. While Complainant indicated that she spoke with an EEO Counselor in June 2016 regarding breach of the settlement agreement, we find that this is also untimely. Based on a review of the record in its entirety, Complainant knew or should have known of the alleged violations sooner than her allegation of breach in October 2017. In fact, the record indicates that Complainant reported that the Agency first breached the settlement agreement as early as May and August 2003. Although the record indicates Complainant formally alleged breach in August 2003, the evidence does not show that she submitted the requisite affidavit to process her claim. Subsequent records show Complainant did not initiate EEO Counselor contact regarding breach again until May 2016. We therefore find that Complainant failed to diligently pursue her breach claims and they are untimely raised. Assuming, arguendo, Complainant’s claims of breach are timely, we find that the Agency was correct in finding no breach of the settlement agreement. According to the Permanent Rehabilitation Job Offer, Complainant would be placed in “Labor Distribution Code 69 for as long as prima facie medical evidence supports work-related restrictions are medically necessary.” The Permanent Rehabilitation Job Offer further explained that the Agency’s operational needs may require a change in the specific tour of duty or assignment. A review of the record indicates that Complainant’s restrictions changed on multiple occasions during the relevant period, as did the needs of the Agency. For example, on or about December 1, 2012, Complainant received an offer for a Limited Duty assignment, which provided restrictions that differed from the restrictions outlined in the Permanent Rehabilitation Job Offer. Similarly, Complainant provided evidence that her restrictions changed once again on May 14, 2013, and records show that Complainant’s reporting time changed in April 2016 due to operational needs. As such, we find that Complainant knew or should have known of the alleged breaches multiple years before she pursued her claim. The Commission has held that a settlement agreement that places a complainant into a specific position, without defining the length of service or other elements of the employment relationship, will not be interpreted to require the agency to employ the complainant in the identical job specified forever. See Parker v. Dep’t of Defense, EEOC Request No. 05910576 (Aug. 30, 1991); Schlect v. Dep’t of Defense, EEOC Appeal No. 01A30918 (Mar. 26, 2003). Similarly, we have determined that an agency is not obligated to maintain a complainant’s schedule forever. See Bax v. United States Postal Serv., EEOC Appeal No. 01A31921 (Jan. 15, 2004) (finding no breach where a supervisor changed the scheduling system due to a decrease in work volume, and as a result, changed the complainant's schedule, which had been established as part of a settlement agreement over six years earlier.) We have applied this rule where the settlement agreement was silent regarding the possibility of future reassignments. Here, given that the settlement agreement provides for schedule changes based on operational needs, we find that Complainant’s subsequent work schedules and job offers do not constitute a breach of the settlement agreement. 0120180343 5 With regard to provision (2) of the settlement agreement, we also find that this allegation is untimely. Although the settlement agreement did not provide a specific time period for the DOS to speak with supervisors, Complainant knew or should have known, from the time that the parties entered into the settlement agreement through her retirement in May 2017, that the DOS had not spoken with supervisors. In any event, Complainant has not provided supporting evidence regarding this allegation. To the extent that Complainant argues that she is entitled to out-of-schedule premium pay, double Sunday premium pay, loss of wages held for continuation pay, and breach of an employment agreement, we find that these allegations are beyond the scope of the terms and conditions of the settlement agreement. Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate the settlement agreement shall be processed as separate complaints. The record reveals that Complainant has filed additional complaints, which apparently encompass these alleged acts of discrimination. CONCLUSION Accordingly, the Agency’s decision was proper and is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 0120180343 6 The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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 September 26, 2018 Date Copy with citationCopy as parenthetical citation