[Redacted], Erika H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2021001901 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erika H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001901 Agency No. 4B-020-0084-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated December 24, 2020, finding that it was in compliance with the terms of an October 21, 2020 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, a hearing impaired employee, worked as a Clerk at the Agency’s Beach Branch Station in Revere, Massachusetts. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 21, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (1) The parties agree to hold an in-person meeting within two weeks of the signing of this agreement for the purposes of discussing working conditions and the expectations of the parties along with any current 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. 2021001901 2 issues. Present at the meeting will be [Manager, Supervisor, Complainant’s representative, and Complainant]. (2) The [Agency] shall procure an iPad through the District Reasonable Accommodation Committee to assist [Complainant] with communication at work and in the service of customers. The [Agency] shall begin the procurement process as soon as possible. The parties acknowledge that once procured, the IT department will work with [Complainant] and/or the DRAC Chairperson regarding the use of the iPad, questions relating to app usage, storage of the iPad when not on duty, etc. By letter to the Agency dated November 4, 2020, Complainant alleged breach of the subject agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the meeting, as required by provision (1), “has not occurred” nor had there been any communication by the Manager or Supervisor. Additionally, Complainant asserted that she had not received any of the equipment, agreed to in provision (2). According to Complainant, management had made “zero efforts” to communicate with her to enable her to “perform my duties in a safe and satisfactory manner.” In its December 24, 2020 decision, the Agency concluded that any breach had been cured following Complainant’s allegation. Referencing an inquiry with Supervisor, Customer Services, the Agency reasoned that, although the meeting did not occur within two weeks of the agreement, a meeting was conducted on November 24, 2020 in compliance with provision (1). As for provision (2), the Agency explained that an iPad had been procured, as well as an app which can be used in communicating with customers. Further, the IT Department ordered a wireless access point (WAP) for the Beach Post Office and, as of December 22, 2020, internet service is available. Because the Agency determined that its actions resolved the breach allegations, the Agency declined to reinstate the underlying complaint. Complainant filed the instant appeal. 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 2021001901 3 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 Commission finds that the instant agreement is void for lack of consideration. Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992). Here, the Agency agreed to “procure an iPad through the District Reasonable Accommodation Committee to assist [Complainant] with communication at work and in the service of customers.” It is plainly evident that the Agency was simply providing a deaf employee with a reasonable accommodation. The Agency is reminded that it is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §1630.2(o); 29 C.F.R. §1630.2(p). This includes providing a reasonable accommodation so that an individual can perform the essential functions of her job, as well as enjoy the equal benefits and privileges of employment enjoyed by employees without disabilities. See Appendix to Part 1630 - Interpretive Guidance on Title I of the Americans with Disabilities Act (“Interpretive Guidance”), § 1630.2(o). As such, we determine that the settlement agreement provided Complainant nothing more than that to which she was already entitled as an employee, so she received no consideration with respect to the settlement agreement. See Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120143205 (Nov. 20, 2015) (agreement requiring the Agency to evaluate whether complainant could perform essential functions with or without a reasonable accommodation, and conduct job search if could not, void for lack of consideration); see also Hudson v. U.S. Postal Serv., EEOC Appeal No. 0120120741 (Nov. 15, 2012) (settlement agreement which required the Agency to consider providing Complainant with work within her limitations was void for lack of consideration); Brown v. U.S. Postal Serv., Appeal No. 0120090822 (April 1, 2009) (agency agreement to address Complainant “as all other employees in a professional matter” lacked consideration). Based on the foregoing, the settlement agreement is unenforceable and is void for lack of consideration. Therefore, we determine that Complainant's original complaint shall be reinstated. Moreover, the record reflects that, contrary to the Agency’s assertions, it still has not provided Complainant with a reasonable accommodation. The Agency decision relies upon a December 22, 2020 affidavit from the Supervisor in stating that an iPad was provided and internet access available by December 15, 2020. A second affidavit from the same supervisor, signed on February 25, 2021, describes what she deemed “many unexpected events and technical 2021001901 4 difficulties.” According to the more recent statement, on December 18, 2020 the IT Department determined that the site router needed a configuration upgrade that could take “a couple of weeks” to complete. The Supervisor attested that she “continued to contact the IT Desk numerous times for other options”. Another piece of equipment was ordered, only to be incompatible with the iPad. Meanwhile, noted the Supervisor, Complainant took leave from December 19, 2020 through January 5, 2021, and intermittently thereafter. When she returned, the iPad could not be unlocked and a new one was ordered. As of the date of the affidavit, February 25, 2021, the Agency was “currently awaiting receipt” of an iPad for Complainant. Based on this limited record, it appears that approximately four months after the execution of the settlement agreement, the Agency still has not provided Complainant with a reasonable accommodation - one that should not be burdensome to produce (i.e an iPad with internet connectivity to access a communication app). On appeal, Complainant states that the absence of the accommodation has been exacerbated by a city mandate requiring her to wear a mask, in addition to her face shield, due to the COVID-19 pandemic. Complainant explains that without an iPad customers cannot understand her. Her supervisor’s suggestion that customers write down what they need, has not been effective. Further, Complainant contends that she is left to work the window alone, without an iPad, creating both a safety concern and the inability to effectively do her job. We find that Complainant’s breach claim constitutes an allegation of the denial of a reasonable accommodation. This claim should be included as an accepted amendment to Complainant’s underlying complaint of discrimination when processing is resumed2. CONCLUSION The Agency’s decision is REVERSED and the case is REMANDED for further processing in accordance with this decision and the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. 2 An investigation of the denial of a reasonable accommodation should consider whether Complainant’s absences, identified by Supervisor, were related to the Agency’s failure to provide her with a reasonable accommodation. 2021001901 5 As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that 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 2021001901 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2021001901 7 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 May 24, 2021 Date