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

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003525 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaqueline L,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003525 Agency No. 4F-926-0015-19 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), following March 8, 2021 correspondence from the Agency indicating that it was in compliance with the terms of a May 26, 2020 settlement.2 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 period, Complainant worked as a City Carrier, Q-1, at the Agency’s Dana Point Post Office in Dana Point, California. On May 22, 2020, Complainant and the Agency entered into a settlement agreement to resolve a formal complaint which had been pursued through the EEO process. In EEO complaint, Complainant had alleged that she was discriminated against when management increased her route to include fourteen to twenty homes, even though Complainant’s worker’s compensation agreement stated that she could only work up to seven houses at a time. 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 The Agency subsequently issued a July 12, 2021 determination letter indicating that it had complied with the May 22, 2021 settlement agreement. 2021003525 2 Complainant further explained that in March 2020, she was off work for bronchitis and she used annual leave, sick leave, and “COVID time” to cover the period she was off from work, until she returned to work in May 2020. However, when Complainant returned to work in May 2020, she was concerned that employees were not wearing masks, and she was afraid that she could be potentially exposed to COVID-19 and transmit the virus to her husband who had chronic obstructive pulmonary disease. Consequently, Complainant suggested that she would use leave to cover her remaining time in the office until she retired on or about June 30, 2020 which ultimately resulted in the formation of terms in the May 26, 2020 settlement agreement. In pertinent part, the May 26, 2020 settlement agreement included the following provisions: THIRD. (4) For any absences from May 18, 2020 until Complainant’s effective retirement or resignation date, Complainant will use her accrued sick leave balance until it is depleted and receive payment accordingly. Complainant will then use her accrued annual leave balance until it is depleted, or she reaches her effective retirement or resignation date, whichever event occurs sooner. Complainant will receive payment for using her annual leave in accordance with the Postal Service’s policies. Once Complainant’s accrued sick leave and annual leave balances are both depleted, the Postal Service will place Complainant on administrative leave until her effective retirement or resignation date. While on administrative leave, Complainant will receive eight (8) hours of administrative leave per day on her regularly scheduled days. Postal service management will facilitate the correct usage of accrued leave or Administrative leave in accordance with this Agreement. Complainant acknowledges that she will not receive any overtime or other form of out of schedule pay. TWELFTH: Enforcement. Complainant agrees that should a dispute arise regarding the implementation of this Agreement, she will not file a new administrative complaint nor file an action in federal district court until thirty (30) days after she has contacted the Manager of EEO Compliance & Appeals P.O. Box 880546, San Francisco, CA 94188-0546, unless it is necessary to file sooner due to the pendency of an applicable statute of limitations. It is the intent of this subparagraph to all Postal Service a reasonable time to correct any real or perceived difficulties arising from the implementation of this Agreement. It is further understood and agreed that if Complainant’s contact with those Postal Service officials listed herein fails to resolve the dispute, the procedures set forth in 29 C.F.R. § 1614.504 are the exclusive procedures for the resolution of any claims arising from this Agreement, including claims of breach or failure to comply or requests for enforcement or rescission of the Agreement. The remedies provided in § 1614.504 are Complainant’s exclusive remedies for such claims, and failure to comply with the time 2021003525 3 limits and other procedures set forth in § 1614.504 shall preclude Complainant from pursuing any administrative or judicial action relating to this Agreement. This Agreement does not entitle Complainant to any monetary payments, including damages for any alleged breach, with the exception of any term expressly providing for a monetary remedy in Paragraph 3. Following the May 26, 2020 settlement agreement, Complainant explained that on or about February 22, 2021, she received an invoice indicating that she was being billed 80 hours of annual leave (totaling $2,668.05) that she received in 2020 but she had not earned. Complainant also indicated that she had 6.2 hours of sick leave that had not been applied. Complainant explained that she contacted the Agency about the issue, and thought the matter was resolved, until she received another bill. Consequently, Complainant asserts that she contacted the EEO Compliance and Appeals manager in early March 2021. On March 8, 2021, an Agency representative informed Complainant, via email, that the May 26, 2020 settlement agreement only covered Complainant’s absences from May 18, 2020 through July 1, 2020 (her retirement date). The email further stated that management did not charge Complainant with advanced annual leave. Rather, the email explained that the bill Complainant received related to leave she used before May 18, 2020, that had been advanced but had not yet been earned. Consequently, the Agency official informed Complainant that management had complied with the terms of the May 26, 2020 agreement. The instant appeal followed. In response to Complainant’s appeal, the Agency argues that Complainant’s appeal is premature. Specifically, the Agency asserts that Complainant raised her breach claim to the Commission before addressing the matter with the Agency, as required by the terms of the settlement agreement. The Agency further argues that it has complied with the settlement agreement and submits documentation in support of this argument. ANALYSIS AND FINDINGS Instant Appeal We acknowledge the Agency’s assertion that the instant appeal is prematurely before the Commission. The record reflects that Complainant first notified an Agency representative in March 2021, about her breach allegation and on March 8, 2021, the Agency representative informed Complainant that the Agency had complied with settlement agreement. Specifically, the Agency representative made the following statement: Unfortunately, it looks like management complied with the settlement agreement that we reached and I do not have the authority to alter the agreement in any way. I also do not have the authority to impact the bill in any way, unless I had reason to believe management failed to comply with the terms of our agreement. Since I 2021003525 4 do not have any reason to come to that belief, I cannot help you any further. My apologies for the inconvenience and best of luck to you. Thereafter, Complainant waited approximately two months to file the instant appeal on May 12, 2021. We note that the Agency maintains that it was unaware of Complainant’s allegation until the Commission forwarded the instant appeal to the Agency on June 7, 2021. Consequently, the Agency asserts that it did not receive the March 2021 documentation Complainant stated she submitted to EEO Compliance and Appeals until June 7, 2021. Nevertheless, we find that the appeal has been perfected as the Agency subsequently issued its Letter of Determination on July 12, 2021 regarding Complainant’s breach of settlement allegation which ultimately affirmed the Agency’s March 2021 correspondence indicating that it had complied with the settlement agreement. Allegation of Breach 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). On appeal, the Agency submits documentation reflecting that it has complied with the settlement agreement. A July 12, 2021 determination letter indicates that the Agency conducted an inquiry into Complainant’s allegations after it became aware of Complainant’s appeal on June 7, 2021. The letter further indicates that the inquiry revealed that Complainant used 54.25 hours of annual leave in October and November 2020. The letter notes that Complainant was advanced these hours at the beginning of the leave year, but she had not earned these hours by the time she retired from the Agency on July 1, 2021. Consequently, Complainant was responsible for the overdrawn balance of 54.24 hours of annual leave. Therefore, the letter indicated that the invoice Complainant received for payment of 80 hours of annual leave was incorrect and that the invoice should have only reflected 54.24 hours of annual leave owed. 2021003525 5 To resolve this issue, the Agency provided Complainant, on July 9, 2021, a copy of PS Form 8039 so that Complainant could make the needed correction to her leave input. Nevertheless, the Agency confirmed that 54.24 outstanding annual leave hours Complainant was responsible for were issued before May 18, 2020, and therefore, were not subject to the terms of the settlement agreement. For these reasons, we find that the Agency did not breach the terms of the May 26, 2021 settlement agreement. CONCLUSION The Agency’s July 12, 2021 determination letter decision finding no breach of the May 26, 2020 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. 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. 2021003525 6 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. 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 27, 2021 Date