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

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2022005015 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenneth H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022005015 Agency No. 1K-231-0021-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 2, 2022, 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 an Expeditor, P-07, at the Agency’s Processing and Distribution Center facility in Sandston, Virginia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 17, 2020, Complainant and the Agency resolved his complaint by entering into a settlement agreement. The settlement agreement provided, in pertinent part, that: Any alleged breach arising out of the implementation of or compliance with this settlement agreement must be reported to the Manager, EEO Compliance and Appeals . . . within 30 days of the alleged breach. 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. 2022005015 2 * * * The Agency agrees to a lump sum payment to [Complainant] for $6,000 for [Complainant’s] involuntary movement from his duty assignment on 1/21/2020 until his return to his duty assignment on 3/12/2020. [Complainant] will also be allowed to clock in at 6:00 p.m., which is two hours early than his normal clock in time. All necessary paperwork will be processed by April 1, 2020. On June 2, 2020, Complainant contacted the Agency’s EEO Compliance to report a breach of the settlement agreement. On June 2, 2020, Complainant and the Agency agreed to resolve the breach by entering into an amended settlement agreement. The amended settlement agreement restated the terms from the March 17, 2020 agreement. In addition, the amended settlement agreement provided, in pertinent part, that: It is understood that this [amended settlement] agreement does not change the primary terms of the initial agreement reached on March 17, 2020, this addendum agreement serves as clarification of the initial [March 17, 2020] settlement agreement. * * * 1. [Complainant] will be offered to come in on overtime at 18:00 [hours] two days of the week at management’s discretion. 2. The term [Complainant] will also retract the breach of EEO settlement from the March 17, 2020 EEO. 3. [The Agency] agrees to an additional lump sum payment to Complainant of $1,000. Paperwork will be processed by June 5, 2020. 4. The letter sent May 22, 2020 with the reporting time change to 18:00 [hours] from management will be rescinded. On June 30, 2022, Complainant contacted EEO Compliance again to report a further breach of the settlement agreement.2 2 Complainant reported a breach of the settlement agreement 10 months earlier on August 10, 2021. He alleged that on August 10, 2021, a supervisor breached the settlement agreement by leaving him a telephonic message not to come in at 6:00 p.m. Complainant argued that the settlement agreement allowed him to clock in at 6:00 p.m. overtime status for “the rest of his career.” On November 10, 2021, the Agency issued a final decision on the matter finding, that it had complied with the terms of settlement agreement. The Agency informed Complainant that he had 30 days to appeal the matter. Complainant did not appeal the Agency’s decision within 30 2022005015 3 Specifically, Complainant alleged that the Agency breached the provision from the March 17, 2020 settlement agreement that “allowed [him] to clock in at 6:00 p.m.” which was “two hours early than his normal clock in time.” He explained on June 30, 2022, he arrived at work at 6:00 p.m. to begin his tour, but the Tour 3 Manager informed him that management was not allowing anyone to work early overtime and instructed him to go home. EEO Compliance officials contacted management to investigate the matter. The Tour 3 Manager admitted that she sent Complainant home on June 30, 2022. She clarified that Complainant was not on the overtime list that day. The Tour 1 Manager described that he stopped placing expeditors on the overtime list as of June 30, 2022, because the need for expeditors to work overtime had diminished. The Logistics Manager added that management had previously allowed staff to work overtime because there were several Covid-19 related absences at the Agency at the start of the pandemic in March 2020. The Logistics Manager indicated that the need for overtime declined after staff had been hired and returned to work. On July 6, 2022, Complainant contacted EEO Compliance to report that the Logistics Manager sent him threatening emails concerning his settlement agreement and violated his privacy by sharing the settlement agreement with other management officials. Complainant reported that the Logistic Manager’s actions were based on his race, color, prior EEO activity, sex, national origin, age, and disability. In its September 2, 2022 final agency decision (FAD), the Agency stated that Complainant’s July 6, 2022 complaint of discrimination was being processed as a separate complaint and not as a breach of the settlement agreement. The Agency stated that the new complaint was identified as Agency No. 1A-758-0024-22. In the FAD, the Agency concluded that it had substantially complied with the terms of the settlement agreement. The Agency reasoned that the settlement agreement did not provide a specific time frame for Complainant’s early overtime schedule, therefore it was obligated to maintain the schedule for a reasonable amount of time. The Agency stated that Complainant’s clock ring reports and records were reviewed, and they showed that prior to June 30, 2022, Complainant clocked in at 6:00 p.m. and worked overtime “consistently” since June 2, 2020, a two-year period. The instant appeal followed. On appeal, Complainant, argues that the FAD should be reversed because the Agency breached the settlement agreement. In addition, Complainant argues that Agency officials altered his lump sum payment in the settlement agreement by changing it from $8,000 to $6,000. Complainant states that he was supposed to receive $8,000, but Agency officials “made the mediator trace over the $8,000 to make it $6,000.” days. Therefore, his August 10, 2021 breach claim is not at issue before us and will not be discussed in this decision. 2022005015 4 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. Department of Defense, 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). The Commission has held that where an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. See Holley v. Department. of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac v. Department. of Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); see also Parker v. Department of Defense, EEOC Request No. 05910576 (August 30, 1991). Rather, the Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Department of Defense, EEOC Request No. 05910576 (August 29, 1991); Gomez v. Department of the Treasury, EEOC Request No. 05930921 (February 10, 1994). In the instant case, the Tour 1 Manager and Logistics Manager explained that there was a business reason to change the overtime schedule. Specifically, the need for expeditors to work overtime had diminished when staff returned to work after Covid-19 related absences. Under these circumstances, we find that the Agency did not breach the settlement agreement or amended agreement because there is no specific time frame in the agreements for how long the Agency was obligated to allow Complainant to work early overtime, and the Agency had complied with overtime schedule provision for over two years. We find that this period of two years was sufficient time to establish good faith compliance by the Agency with the terms of the settlement agreement and amended agreement. Therefore, we find that the Agency did not breach the settlement agreement or amended agreement. See Lasso v. United States Postal Service, EEOC Appeal No. 0120111023 (May 10, 2011). On appeal, Complainant also argues that Agency officials altered his lump sum payment in the settlement agreement by changing it from $8,000 to $6,000. Complainant states that he was supposed to receive $8,000, but Agency officials “made the mediator trace over the $8,000 to make it $6,000.” Despite the argument made otherwise, Complaint has not provided evidence to show that he initially agreed to a lump sum payment of $8,000. And there is no evidence in the record demonstrating that the mediator reduced the lump sum payment contrary to his agreement. Complainant had ample opportunity to dispute the lump sum payment. He contacted EEO Compliance multiple times to report Agency breaches, but he never reported issues with the lump sum payment. 2022005015 5 We note that on July 6, 2022, Complainant raised a new discrimination claim. In the FAD, the Agency correctly indicated that it did not make a final determination on the new claim because it was being processed as a separate complaint and not a settlement breach claim. CONCLUSION Accordingly, the Agency’s decision that it was not in breach of the settlement agreement was proper and 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. 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). 2022005015 6 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 January 4, 2023 Date