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

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2021004533 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004533 Agency No. 4E-852-0179-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated July 16, 2021, finding that it was in compliance with the terms of a November 16, 2020 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 period at issue, Complainant worked as a Carrier Technician at the Agency’s facility in Phoenix, Arizona. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 16, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (1) [Named Customer Service Supervisor (S1)] agrees to authorize [Complainant] to extend her current detail past the 90 days, which expires on December 31, 2020, for an additional 90 days. [Complainant] understands that it is her obligation to procure authorization from the 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 2021004553 Manager at her current Detail Office, for her detail to be extended past December 31, 2020. (2) In addition, [S1] agrees to authorize any other 90-day detail [Complainant] may find if her current detail is not extended. [Complainant] understands that it is her obligation to procure authorization from the Manager at the new Detail Office, for any new detail to be extended past December 31, 2020. (3) [S1] agree[s] to send out a mass email to all AZ users informing them that she has an employee that is interested in a 204B detail or any other detail opportunities they may have in their office. [S1] agrees to send out this email no later [than] November 20, 2020.2 On June 5, 2021, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to place her in a 204B position. On July 16, 2021, the Agency issued a final determination finding that it was not in breach of the settlement agreement. The Agency reasoned that management sent out an email on November 19, 2020 regarding a 204B detail pursuant to provision (3) of the settlement agreement. The Agency reasoned that the settlement agreement did not obligate the Agency to find Complainant a detail. Specifically, the Agency stated “[t]he onus on finding a new detail was on [Complainant], not on management.” The instant appeal followed. On appeal, Complainant asserts that she is dissatisfied with the Agency’s final determination finding that the Agency was not required to place her in a 204B detail, pursuant to the settlement agreement. Complainant, on appeal, sets forth her numerous efforts to secure a 204B detail which were not successful. Complainant asserts that she continues to be subjected to a hostile work environment by Agency management. 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). 2 The settlement agreement contains other provisions which are not at issue herein. 3 2021004553 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 Agency did not breach the instant settlement agreement with respect to placing Complainant in a 204B detail. Provision (3) obligated the Agency to send out an email to “AZ” users” informing the AZ users that they had an employee interested in a 204B detail by November 20, 2020. The record contains an email from Agency management to “AZ All Users” dated November 19, 2020 stating that Osborn Station has an employee interested in a 204B detail.3 This provision did not obligate the Agency to find and place Complainant in a 204B detail. Thus, we find the Agency did not breach provision (3) of the settlement agreement. In addition, provisions (1) and (2) of the settlement agreement, obligated the Agency to extend Complainant’s current detail for 90 days if Complainant procured authorization from the Manager at her current detail office (provision (1)) and to authorize any other 90 day detail Complainant may find if her current detail was not extended (Provision (2)). We concur with the Agency that the onus was on Complainant to secure a 204B position. Thus, we find that the Agency did not breach provisions (1) and (2) of the settlement agreement. To the extent Complainant is alleging that she is continuing to be subjected to a hostile work environment or that the Agency is discriminating against her by not placing her in a 204B position, she should initiate EEO contact if she wishes to pursue these matters in the EEO process.4 Accordingly, we AFFIRM the Agency’s final determination finding no breach of the settlement agreement. 3 While we acknowledge that the Station Manager sent out the November 19, 2020 email rather than the Supervisor, Customer Service (S1), the record reflects that S1 sent out a subsequent email on June 14, 2021 to “AZ All Users” stating that Osborn Station had an employee interested in a 204B detail or any other detail. We find that based on these actions the Agency is in substantial compliance with provision (3) of the settlement agreement. 4 Complainant, on appeal, asserts that she initiated a new pre-complaint. 4 2021004553 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). 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). 5 2021004553 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 December 21, 2021 Date