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

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2021000059 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashonda M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021000059 Agency No. 4C-400-0059-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a Agency final decision, dated September 4, 2020, finding that it was in compliance with the terms of a June 9, 2020 settlement agreement into which the parties entered. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On June 9, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (1) The USPS agrees to place [Complainant]in the Okolona Station. . . . 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. 2021000059 2 (3) The USPS agrees to allow [Complainant] to complete the remaining two weeks of her probationary period and to retain her relative standing. (4) The USPS agrees [Complainant] will accept a lump sum of one thousand five hundred dollars and no cents ($1,500) for compensatory damages . By letter to the Agency dated July 21, 2020, Complainant alleged breach when it terminated her, for purported attendance problems, on June 26, 2020. During the ten days since her reinstatement at the Okolona Station, asserted Complainant, she had neither been late nor absent. Moreover, only two days before the termination, Supervisor-G had told her she was a “good worker” and made no mention of attendance. She noted that on June 24, 2020, Supervisor-G permitted her to come in early, at 4:00 a.m. instead of 5:30 a.m., so she could finish her workday before an afternoon appointment. In its final decision, the Agency found no breach and determined that it was in full compliance. The Agency found that Complainant’s employment was terminated due to unsatisfactory attendance. Citing an affidavit from Manager, Customer Services (hereinafter “Manager-H”), Complainant was originally instructed to report at 5:30 a.m., but on June 15, 2020 was informed to start at 5:00 a.m. moving forward. However, between June 19 and June 23, 2020, Complainant was tardy four times. Additionally, on June 25, 2020 Complainant informed management she was going home early, using 3.25 hours of unscheduled Leave Without Pay (LWOP). For these reasons, Complainant was terminated. Complainant filed the instant appeal. 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). 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). As an initial matter, we note that the June 9, 2020 agreement also included the following stipulation: 2021000059 3 I am fully aware that any settlement agreement knowingly and voluntarily agreed to by the parties is binding on both parties. If I believe [the Agency] has failed to adhere to the stipulations contained in this agreement for any reason not attributable to my acts or conduct, I must notify the Manager, EEO Compliance and Appeals . . . . (emphasis added). Therefore, the Agency was not prohibited from removing Complainant, even in contradiction of provision (3), if based on Complainant’s misconduct. This action is precisely what the Agency contends it took, thereby maintaining that it is in compliance with the agreement. However, a review of the record does not adequately support the Agency’s proffered reasons for terminating Complainant during the final two weeks of her probationary period. Manager-H attested on the thirteenth day of her last two weeks of her probationary period, Complainant went home before her shift ended. “For this reason, along with her past history of unsatisfactory attendance” Manager-H issued Complainant’s termination letter. Specifically, Manager-H explained that after Complainant informed Supervisor-M she was leaving early, Manager-H “looked at her previous attendance and found multiple instances of unauthorized absences (partial- day LWOPs) while at her previous station as well as a couple full-day unscheduled absences.” Moreover, stated Manager-H, “[s]ince being at Okolona, she has had no fewer than four [tardinesses] and left early on June 25, 2020 . . . .” Manager-H also believed that Supervisor-G spoke to Complainant regarding her unsatisfactory job performance on June 22 or June 23, 2020. The record contains five “Request for or Notification of Absence” (PS Form 3971) for the allegedly late arrivals and use of LWOP. Each of the forms are signed by Manager-H, but none include Complainant’s signature on the line provided for the employee. The tardinesses are also not included in the “Leave Year 2020 Absence Analysis”, even there the chart provides a code for “Late Reporting”.2 The parties provide conflicting accounts regarding Supervisor-G. According to Complainant, Supervisor G had recently remarked that she was a “good employee,” while Manager-H references the same supervisor in stating Complainant’s performance was unsatisfactory. Yet, the record contains neither an affidavit from Supervisor-G nor any other evidence of his views on Complainant’s attendance or performance. The record is similarly lacking as to the seemingly simple matter of Complainant’s start time. Specifically, Manager-H contends that two days into her job at Okoloma Station Complainant’s reporting time was changed from 5:30 a.m. to 5:00 a.m. Complainant, however, only references a 5:30 a.m. starting time in challenging her removal. There is no documentation illustrating what Complainant’s official schedule was and when it was altered and communicated to Complainant. 2 Manager-H attested that “Since it was after the fact that I looked back and found her tardies, I did fail to record them in eRMS but have the hard copy.” 2021000059 4 Finally, an inquiry into Manager-H’s knowledge, or lack thereof, regarding the June 9, 2020 settlement agreement would also be useful in evaluating the breach allegation. We are troubled by the possibility that, less than one week after executing the settlement agreement, Complainant began work at her new station pursuant to that agreement, only to be discriminatorily terminated approximately one week later. Because we are unable to make a determination regarding Complainant’s allegation of breach based on the instant record, the matter is remanded to the Agency for a supplemental investigation. CONCLUSION The Agency’s decision finding it was in compliance with the June 9, 2020 settlement agreement is VACATED and the matter is REMANDED for a supplemental investigation in accordance with this decision and the ORDER below. ORDER Within thirty (30) calendar days of when this decision is issued, the Agency shall conduct a supplemental investigation regarding the alleged breach of the June 9, 2020 settlement agreement. The investigation shall include, but is not limited to: (a) an affidavit from Supervisor-G, addressing Complainant performance and attendance since her reinstatement at the Okolona Station; (b) documentation regarding Complainant’s starting time and when any alterations were communicated to Complainant; (c) a layman’s explanation for “Employee Everything Report” submitted in the appeal file by the Agency; (d) an affidavit/s from Agency official/s responsible for implementing the terms of the settlement agreement regarding Complainant’s placement at Okolona Station and completion of her probationary period, including which Agency employees at Okoloma Station had knowledge of the agreement. Upon completion of the investigation, the Agency must provide Complainant with a copy of the supplemental record and the opportunity to submit a statement concerning the supplemental inquiry. No later than forty-five (45) days after the date this decision is issued, the Agency shall issue a new final decision, with appeal rights, regarding the allegation of breach. 2021000059 5 In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021000059 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2021000059 7 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 22, 2021 Date