[Redacted], Lacy R, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 6, 2021

Appeal No. 2020002087 (E.E.O.C. Jan. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lacy R,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020002087 Agency No. 4C170009419 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a December 18, 2019 final agency decision (“FAD”) that found the Agency 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 During the relevant time period, Complainant was employed by the Agency as a Rural Carrier at Ronks Post Office, located in Ronks, Pennsylvania. On June 27, 2019 Complainant and the Agency entered into a negotiated, binding settlement agreement (“the Agreement”) to resolve a discrimination complaint that Complainant raised with an EEO Counselor. The responding management officials included. The portions of the Agreement at issue are Stipulations 2 and 3, which provide: (2) The Postmaster (“PM”) will ensure the current case used by Complainant will not be removed until after a District Reasonable Accommodation Committee (“DRAC”) decision has been made. 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. 2020002087 2 (3) If the DRAC decides that Complainant can be accommodated by using the new case, then PM agrees to make the following accommodations: (a) Complainant will be allowed to start work at 7:00 am, (b) Complainant will be allowed to return as late as necessary as long as he returns in time to get his mail/packages on the dispatch truck, (c) PM will provide assistance if Complainant requests it,2 and, (d) These accommodations will last for four weeks. On an unspecified date in October 2019, prior to receiving the DRAC determination on his reasonable accommodation request, Complainant provided written notice to the Agency alleging that it was in breach of the Agreement, and requested that the Agency specifically implement its terms. However, the Agency could not comply with Stipulations (2) and (3) until Complainant obtained a decision from the DRAC on his reasonable accommodation. On October 29, 2019, Complainant and his attorney discussed his request for a reasonable accommodation with the Central Pennsylvania DRAC (“DRAC,” or “the Committee”) during an “interactive meeting” via conference call.3 Complainant explained that PM was implementing a program to consolidate cases at the Ronks Post Office, and that he had a vision impairment that would prevent him from learning a new case quickly. As a change to his case configuration would negatively impact his evaluated times Complainant asked to keep the case he had used for years as a reasonable accommodation. On November 15 and 21, 2019, DRAC notified Complainant that based on his medical records and the October 29, 2019 interactive meeting, it granted him a reasonable accommodation, effective when Complainant’s new case was installed on “approximately January 2, 2020.” This accommodation provided that for 30 days, Complainant would be permitted to start work 45 minutes early at 7:00 am, and permitted additional time to learn the new case, including over the evaluated times if necessary, so long as he always made dispatch. After 30 days, Complainant and his manager would meet to evaluate his progress with the new configuration. 2 Stipulation 3(c) was omitted from the Agency’s decision, which identified Stipulation 3(d) as Stipulation 3(c). 3 Complainant insists on referring to the October 29, 2019 meeting as “the DRAC Hearing,” despite clarifications in the record by the Agency and the DRAC, that it was not a hearing, but an “interactive meeting,” to discuss Complainant’s disability-related limitations and how they impacted his ability to perform the essential functions of his job. 2020002087 3 The DRAC also offered to facilitate a site visit by Vision Corps of Lancaster County for guidance on assistive measures available that would help Complainant perform the essential functions of his position. In its determination letter, the DRAC did not discuss Complainant’s requested accommodation, but noted that the sequence of the addresses for Complainant’s delivery points would not change with the new case configuration. Complainant appealed the DRAC’s decision to the District Human Resources Manager (“HR”). On December 31, 2019, HR denied Complainant’s appeal, finding the accommodation the DRAC granted to be effective. On the same day, Complainant’s doctor directed him to remain off work until cleared by an Orthopedic Surgeon. Complainant states on appeal that he was off work due to a medical condition on January 2, 2020, and the four week period his scheduled reasonable accommodation. In his breach notice, Complainant alleged that PM “pre-determined” the outcome of his upcoming interactive meeting with the DRAC by requiring him to use a different case before DRAC issued a determination on his reasonable accommodation request not to change cases. According to Complainant, “[the Agreement] left the determination of the casing equipment used for [Complainant], going forward, up to the DRAC after a Reasonable Accommodation [interactive meeting], which has not yet taken place.” Following the DRAC decision and HR’s denial of his appeal, Complainant maintained that the Agency was in breach of the Agreement because the DRAC decision was not fairly processed, and it was pre-determined. In its December 18, 2019 FAD, the Agency concluded that Complainant’s breach allegation was untimely, and regardless, he failed to establish that a breach occurred. 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). 2020002087 4 On appeal, following the DRAC’s decision, which provided an accommodation based on the new case rather than granting Complainant’s preferred accommodation of maintaining his old case, Complainant maintained that that the Agency was in still in breach of the Agreement. The specific breaches occurred when the Agency (1) did not provide Complainant with a fair DRAC interactive meeting, (2) reached a decision on his reasonable accommodation before the DRAC process began, (3) failed to include all of the stipulations in the Agreement in its finding that no breach occurred, and (4) when DRAC and HR changed the wording of the Agreement. With respect to Breach Claims 1 and 2, other than Complainant’s bald statements, there is no evidence to support that DRAC “pre-determined” the reasonable accommodation it offered to Complainant prior to the interactive meeting, nor has he shown that the meeting was conducted in an unfair manner. While the record supports Complainant’s allegations in Breach Claims 3 and 4, he has not shown how the Agency’s failure to include this language in separate documents constituted a breach of the Agreement. Also, Complainant has not offered examples of PM refusing his requests for assistance, as required under Stipulation 3(c), or shown that the Agency denied him four weeks with the reasonable accommodation under Stipulation 3(d). As for Complainant’s initial breach claim concerning Stipulation 2 of the Agreement, the language of the Agreement does not require PM to allow Complainant to continue using his old case from the date they entered the Agreement to the date DRAC issued a decision on his reasonable accommodation request, therefore, PM’s failure to do so is not a breach of the Agreement. See Carter v. Dep’t of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) (citing Jenkins-Nye v. Gen. Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). We find that PM’s only obligation with respect to Complainant’s old case, was to ensure that it would “not be removed until after the [DRAC] decision.” Presumably this was to ensure that PM could comply if the DRAC decided to grant Complainant’s preferred accommodation. If Complainant sought to obligate PM to allow him his preferred accommodation of continuing to use his old case, he should have reduced it to writing. Jenkins. Additional Claims Raised on Appeal 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. As previously discussed, Complainant’s settlement breach claim included allegations that the DRAC process for providing him with a reasonable accommodation was unfair. The breach claim also indicates that Complainant does not feel the Agency provided him with an effective reasonable accommodation. These reasonable accommodation-related allegations may be filed as a separate EEO complaint by contacting an EEO Counselor pursuant to 29 C.F.R. § 1614.105. Complainant alleges multiple violations of the Family and Medical Leave Act (“FMLA”). The FMLA falls under the regulatory ambit of the Department of Labor, not the Commission; therefore, the Commission has no jurisdiction over challenges of the Agency’s decisions on FMLA requests. See Stensgard v. United States Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012). 2020002087 5 However, we have previously upheld discrimination allegations where the Complainant is challenging the acts of an Agency manager rather than the decision of an adjudicatory body. See Allene R. v. United States Postal Serv., EEOC Appeal No. 0120160434 (Jan. 28, 2016) reconsideration denied EEOC Request No. 0520160206 (Sept. 8, 2016) (manager refused to approve sick leave requests as FMLA-protected), Complainant v. Dep’t of the Army, EEOC Appeal No. Appeal No. 0120150845 (May 1, 2015) (manager deliberately delayed requesting additional information from the complainant in order to harass her). To the extent that Complainant is challenging the actions of an Agency manager, such as the incident he referenced where PM chastised him in front of his coworkers about an FMLA request, he may initiate a new EEO complaint by contacting an EEO Counselor pursuant to 29 C.F.R. § 1614.105. The EEOC does not have the authority to enforce provisions within a collective bargaining agreement (“CBA”) between the Agency and the Union. Complainant’s allegation that the Agency failed to comply with the “signed, legally binding agreements entered into between the USPS and NRLCA,” which provided that the Agency could not change the casing equipment until the assigned carrier changes or the route itself changes falls outside EEOC jurisdiction. The proper forum to raise such a claim is through the grievance process under the CBA, or before the Federal Labor Relations Authority (“FLRA”). See Spiwak v. United States Postal Serv., EEOC Appeal No. 01991180 (Jan. 26, 2001), Simensen v. United States Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002). Typically EEOC jurisdiction does not encompass instances of a supervisor’s misconduct related to matters of business operations. Complainant’s allegation that PM breached the Agreement when she regularly underreported the daily mail volume by dividing magazine bundles, and improperly classifying small parcels as flats to be cased during mail count is outside EEOC jurisdiction. Complainant argues that PM intentionally skewed the station’s statistics in order to implement the Case Consolidation Program, her stated reason for changing/consolidating Complainant’s case. While the alleged false reporting is peripherally related to the Agreement in that it impacts Complainant’s need for an accommodation, the plain language of the Agreement is silent on the parties’ obligations with respect to reporting mail volume data. CONCLUSION The Agency’s determination that it was not in breach of the Agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020002087 6 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, 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. 2020002087 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 6, 2021 Date