[Redacted], Shaniqua W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003527 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shaniqua W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021003527 Agency No. 4F-913-0002-21 DECISION On May 5, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an April 6, 2021 final Agency determination (FAD) concluding the Agency complied with the settlement agreement 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 was employed by the Agency as a City Carrier Assistant 1, Q-01, at the Lancaster Post Office in Lancaster, California. After Complainant initiated an equal employment opportunity (EEO) administrative claim in the 29 C.F.R. Part 1614 process, on December 15, 2020, she and the Agency entered into a settlement agreement to resolve the matter. Term 3 required that: 3. Any payment that [Complainant] is entitled to according to the compensation letter from the United States Department of Labor dated 12/07/2020 to [Complainant] will be promptly processed by the Postal Service within 60 calendar days from the signing of this agreement. Management will provide proof of compliance within the time frame. 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. 2021003527 2 The December 7, 2020 letter referenced in Term 3 of the settlement agreement stated, “[Complainant] is entitled to COP [Continuation of Pay] for the period of 09/09/2020 through 10/24/2020.” By letter to the Agency dated February 26, 2021, and postmarked March 2, 2021, Complainant stated because 60 days elapsed by or on February 15, 2021, and the Agency had yet to make payment, it breached the settlement agreement. She asked that her EEO case reinstated and processed from the point processing ceased. On March 1, 2021, the Department of Labor, Office of Workers’ Compensation Programs (OWCP) made a COP payment to Complainant for the period of September 9, 2020 through September 23, 2020. In its payment receipt/explanation, OWCP wrote Complainant was separated on September 23, 2020, and OWCP processed the payment because of limitations in the Agency’s payment system after separation. The FAD determined that since Complainant’s last day in pay status was September 23, 2020, she was only entitled to COP through that date. The instant appeal followed. On appeal, Complainant argues that in settlement negotiations with the Agency, she inquired how it could pay her COP past her separation date of September 23, 2020, and management assured her it would get it done and pay her through October 24, 2020. She also argues that the payment she received was past the settlement agreement’s 60 day deadline. ANALYSIS Per 29 C.F.R. § 1614.504(b), an agency has 35 days from the receipt of a complainant’s allegation of noncompliance to resolve the matter, or cure any breach that occurred. If an agency cures a breach during the 35 day period after the filing of a breach claim, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (Apr. 29, 2009). Because the Agency did not receive Complainant’s allegation of noncompliance until March 4, 2021, her getting payment on March 30, 2021, cured any breach as to the timing of the payment in and of itself. 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). 2021003527 3 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). Regardless of what was said during settlement negotiations, the plain meaning of Term 3 is the Agency would pay Complainant COP from September 9, 2020 through October 24, 2020 - given the explicit reference therein to the December 7, 2020 letter. OWCP, which ultimately made payment because of limitations in the Agency’s payment system after separation, determined Complainant was entitled to COP from September 9, 2020 - September 23, 2020, and paid her accordingly. Under the general principles of contract law, a party may avoid an otherwise valid contract because of a mistake. One who attacks a settlement agreement bears the burden of showing mutual mistake. The party attempting to avoid the contract must prove that: (1) the mistake related to a basic assumption upon which the contract was made; (2) the mistake had a material effect upon the agreement; and (3) the mistaken parties did not assume or legally bear the risk as to the mistaken fact. Grant v. Department of the Army, EEOC Appeal No. 01931896 (Jun. 18, 1993) (the parties agreed to change the complainant’s retirement plan and have the Agency make up the contribution to the complainant’s retirement fund for the period covered by the change. After the Agency submitted the necessary paperwork to the Office of Personnel Management, it replied that the above agreement would result in the complainant receiving retirement pay during a period when he was not eligible to receive it, in violation of the law. The parties did not know this when they entered into the settlement agreement and made a mutual mistake of a material fact. The settlement agreement is not enforceable). Here, we find that in forming the settlement agreement, the parties made a mutual mistake - they agreed the Agency would pay Complainant COP from September 9, 2020 through October 24, 2020, but OWCP, which ultimately processed payment because of limitations in the Agency’s payment system after separation determined Complainant was entitled to COP from September 9, 2020 - September 23, 2020, and paid her accordingly. The parties entered into the settlement agreement months after Complainant was separated. The above mistake as to the amount Complainant would be paid had a material effect upon the agreement - a little more than a month of lost COP pay. Neither Complainant nor the Agency assumed the risk as to the mistaken fact. Accordingly, the settlement agreement is void and the FAD is REVERSED. ORDER The Agency is ordered to reinstate Complainant’s administrative EEO case and resume processing it under 29 C.F.R. Part 1614 from the point processing ceased. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 2021003527 4 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2021003527 5 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. 2021003527 6 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