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

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2020005454 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020005454 Agency No. 4B12002520 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from an August 26, 2020 Final Agency Decision (“FAD”) 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 Part-Time Flexible ("PTF") Clerk at the Ilion Post Office in Ilion, New York. On July 14, 2020, Complainant and the Agency entered into a settlement agreement (“the Agreement”) to resolve an EEO complaint in which Complainant alleged discrimination by the Agency. The underlying EEO complaint involved two responding management officials, the Postmaster (“PM”) and Complainant’s supervisor (“S1”), who were both parties to the Agreement. The Agreement provided that: Management (preferably both [PM and S1]) and [Complainant] agree to hold a meeting once a month until the end of this year (inclusive of December 2020) to be 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. 2020005454 2 held at a time convenient for operations within the first two weeks of the month for the purpose of discussing [Complainant’s] career questions and strategies for upward mobility. For convenience of the parties, the meetings are held at the parties' regular work location. If either management or [Complainant] is unavailable for whatever reason (vacation, illness, work obligations, etc.), then the meeting(s) will be scheduled as soon as possible after the first two weeks of the month. The meeting is completely off the record so that [Complainant] may raise other issues or questions and talk freely and frankly. This is different from a regular open door meeting or any other meeting available to USPS employees; and [Complainant] it constitutes adequate consideration (getting something of value that he is not otherwise entitled to) for this Agreement to be binding. On July 19, 2020, Complainant contacted the Agency in writing alleging it was in breach of the Agreement. Specifically, Complainant alleged that on July 17, 2020, the Postmaster (“PM”) spoke disparagingly to one of Complainant’s colleagues (“C1”) about Complainant and discussed confidential information related to the investigation of Complainant’s EEO complaint underlying the Agreement. Alternately, Complainant challenged the validity of the Agreement, alleging that it lacks adequate consideration and is too vague to be enforceable. The Agency’s FAD concluded that it was in compliance with the Agreement, and that the Agreement contained sufficiently specific information to be valid. The instant appeal followed. 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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). 2020005454 3 Consideration When a settlement agreement lacks adequate consideration, it is unenforceable. See Collins v. United States Postal Serv., EEOC Request No. 05900082 (Apr. 26, 1990). 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. United States Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997). In the instant case, both parties incurred a legal detriment. Complainant incurred a legal detriment by withdrawing a pending EEO action. The Agency incurred a legal detriment when Management (preferably both PM and S1) committed to holding a total of 5 monthly meetings (August 2020 up to and including December 2020), with Complainant “for the purpose of discussing [Complainant’s] career questions and strategies for upward mobility” and which would be considered “off the record.” Complainant argues that the Agency’s commitment to hold meetings does not constitute a legal detriment because of the Agency’s open door policy. In other words, Management did not agree to provide Complainant with anything it did not already provide to all employees, as all employees can meet with Management to discuss advancing their employment and other work related matters. We disagree, as Complainant, unlike his fellow employees, has been guaranteed 5 monthly meetings on a specified topic. Although the language of the Agreement does not guarantee that the meeting will be held within the first two weeks of each month, and that PM and S1 will both be in attendance, the Agency has provided further consideration by ensuring that an effort is made to satisfy these conditions each month to demonstrate good faith performance of its obligations under the Agreement. Specificity of Agreement A settlement agreement found to be too vague to enforce is invalid. See Bibb-Merriu v. United States Postal Serv., EEOC Appeal No. 0120072689 (Nov. 13, 2009). We have previously found that a settlement agreement is “too vague” when we cannot determine whether the agency complied with its terms and, it is devoid of any substantive, specific benefit to complainant. See Angeles v. United States Postal Serv., EEOC Appeal No. 0120090317 (Mar. 6, 2009) (Commission found agency's promise to "directly address issues brought up" too vague to enforce agreement), see also Huzina v. United States Postal Serv., EEOC Appeal No. 0120055039 (Jan. 4, 2006) (Commission found agreement's promise that supervisor would "open lines of communication" with complainant too vague to enforce), Bruns v. United States Postal Serv., EEQC Appeal No. 01965395 (Jun. 24, 1997) (Commission found settlement agreement's requirement that complainant be "treated fairly with dignity and respect" was too vague to allow a determination as to whether the agency complied with such a provision). 2020005454 4 Complainant argues that the Agreement should be voided as overly vague with respect to the consideration he was offered. For instance, the Agreement required Management to hold 5 monthly meetings with Complainant, yet failed to specify the location, date, time, and duration of the meetings, or the management official he would meet with. Despite the lack of specificity in these areas, the Agreement is not so vague that we cannot determine whether the Agency complied with it. The Agreement provides that the meetings should be held at the parties’ “regular work location,” occur within the first two weeks of the month and preferably with PM and S1. Compliance with these matters is ascertainable. While there is no set duration for the meetings provided in the Agreement, compliance can still be determined based on whether a reasonable amount of time was used to address the specified subject matter. We find the Agreement is valid. Incident Giving Rise to Breach We have previously held that if a settlement agreement is made in good faith and is otherwise valid, it will not be set aside simply because it appears that one of the parties had made a poor bargain. See Ingram v. General Services Administration, EEOC Request No. 05880565 (June 14, 1988). We find no evidence that the Agreement was executed in bad faith. Although Complainant argues that PM’s alleged comments on July 17, 2020, are evidence of bad faith, these comments were made after PM entered the Agreement. Moreover, there is insufficient evidence to support that PM made the comments. According to Complainant, on July 17, 2020, PM told C1, “I was asked if I ever told [Complainant] if it was anybody else that he would have been gone a long time ago. If it was up to me, [Complainant] would have been gone sooner.” Immediately after PM made the comments, Complainant saw C1 on his phone. When Complainant asked, C1 said he was texting good morning to a colleague at another Agency facility. Finding the explanation unusual given the timing and that phone use was prohibited in their location at the window, Complainant concluded that C1 was notifying others of PM’s remarks. Complainant argues that PM’s alleged statements are “evidence that [PM] is not willing to help further Complainant’s career, but hinder it by speaking poorly of [Complainant] in the workplace to his fellow employee.” There is no evidence in the record establishing that PM made the statements as alleged. However, assuming, arguendo, that Complainant could establish that the events occurred as alleged, they would not establish breach. To the extent that Complainant interpreted the Agreement as mandating that PM not make any disparaging statements about Complainant, or take actions to further Complainant’s career, such interpretation should have been reduced to writing as part of the Agreement, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. Gen. Servs. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). Subsequent Acts of Discrimination Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. 2020005454 5 Therefore, if Complainant believes PM’s alleged statements were motivated by discrimination or retaliation, he may raise these matters in a separate EEO Complaint pursuant to 29 C.F.R. § 1614.105. The Commission does not address whether such contact would be timely. We note that if true, Complainant’s allegation that PM discussed confidential EEO matters with a colleague describes per se retaliation. See, e.g. Ashby v. Dep't of the Treas., EEOC Appeal No. 0120090364 (Feb. 27, 2012), recon. den., EEOC Request No. 0520120435 (Jul. 12, 2012) (finding per se retaliation where a supervisor mentioned the complainant’s prior EEO activity to a colleague and made inappropriate comments about the complainant’s EEO complaints). Per se retaliation refers to comments that, on their face, discourage an employee from participating in the EEO process, thereby violating the letter and spirit of EEOC regulations. See Binseel. The Agency is strongly reminded that there is no place for this type of behavior from any manager of the federal government. Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. 29 C.F.R. §1614.101 This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to "insure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity. 29 C.F.R. §1614.102(5), Binseel v. Dept of the Army, EEOC Request No. 05970584 (Oct. 8, 1998), Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009). As the underling complaint alleged denial of a reasonable accommodation for Complainant’s disability, we also note that his withdrawal of his EEO Complaint as consideration for the Agreement does not preclude Complainant from further alleging denial of reasonable accommodations. Because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-IV(C)(1)(a) (rev. July 21, 2005), Akbar v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102856 (Dec. 11, 2012), Smith v. Dep't of the Navy, EEOC Appeal No. 0120121807 (Jul. 13, 2012). CONCLUSION Accordingly, the Agency's finding that it was not in breach of the 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 2020005454 6 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). 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. 2020005454 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 January 25, 2021 Date