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

Equal Employment Opportunity Commission

Jul 8, 2021

Appeal No. 2021002568 (E.E.O.C. Jul. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erich A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002568 Agency No. 4C-250-0004-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated February 8, 2021, finding that it was in compliance with the terms of a January 25, 2019 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On May 23, 2013, Complainant and the Agency entered into a settlement agreement to resolve a matter pursued through the EEO complaint process. The January 25, 2019 settlement agreement provided, in pertinent part, that: My settlement is based on the following stipulations: [A/Postmaster], or his designee, will follow up by setting behavioral expectations with other employees to include private discussions, notices on the on the board and stand up talks on harassment and zero tolerance. Both sides recognize that [Complainant] will report any new instances to management if they occur. There will be a meeting once a month for the next twelve months between [Complainant] and the current Postmaster. The Manager, Post Office Operations will be made aware of this 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. 2021002568 2 agreement and as well as any subsequent Postmaster during the length of this next twelve months. By letter to the Agency dated January 2, 2021, Complainant alleged breach. Specifically, Complainant alleged that he has “continually been harassed and bullied” since signing the January 25, 2019 settlement agreement. He further claimed that he notified management aware of the numerous situations “with no resolution as they have turned a blind eye to the cited incidents.” In its February 8, 2021 final decision, the Agency found no breach. The Agency noted that the A/Postmaster asserted that after signing the settlement agreement, he immediately held private discussions with two employees at the Morgantown, West Virginia Post Office regarding expectations for conduct in the workplace. He further stated that by February 1, 2019, he had posted at the facility two stand-up talks regarding the USPS Harassment Policy and the USPS Zero Tolerance Policy. The Agency also noted that the new Postmaster who became the A/Postmaster of the Morgantown Post Office in February, stated that she had participated in a number of informal meetings with Complainant. She noted that during the meetings, Complainant reported several disagreements with various co-workers. Thereafter, A/Postmaster stated that she immediately looked into the matters that Complainant reported and when necessary she addressed the parties involved to correct the situation. The record contains a copy of the A/Postmaster’s affidavit dated February 5, 2021, in which she stated that she had informal talks with Complainant over the course of the years 2019 and 2020. Specifically, she stated that the discussions address incidents he reported to her. The A/Postmaster asserted “from the time [Complainant] reports a situation, I immediately address the parties involved. Additionally, I am pro-active in constantly messaging to all employees the Postal rules on harassment, EAP and zero tolerance.” Moreover, the A/Postmaster stated that she set up a meeting schedule to meet with Complainant every first Tuesday of the month beginning March 2021 and ending in March 2020. She stated that she will continue meeting with Complainant once a month for the duration of twelve months. 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). 2021002568 3 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 January 25, 2019 settlement agreement imposed upon the Agency the following affirmative obligation: that the Acting/Postmaster or his/her designee, will follow up by setting behavioral expectations with other employees to include private discussions, notices on the on the board and stand up talks on harassment and zero tolerance; Complainant will report any new instances to management if they occur; and the A/Postmaster will conduct a meeting with Complainant once a month for the next twelve months for the next twelve months; and the Manager, Post Office Operations will be made aware of this agreement and as well as any subsequent Postmaster during the length of this next twelve months. Given the present record, as discussed above, we find that the Agency has complied with the January 25, 2019 settlement agreement. Finally, to the extent Complainant raised new claims on appeal, the Commission has held that claims of further discrimination should be processed as a new, separate complaint rather than a breach claim. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (Aug. 9, 1990). CONCLUSION The Agency’s final decision finding no breach of the January 25, 2019 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. 2021002568 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. 2021002568 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 July 8, 2021 Date