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

Equal Employment Opportunity Commission

Apr 29, 2021

Appeal No. 2021001817 (E.E.O.C. Apr. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Soo C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021001817 Agency No. 1C-374-0020-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated November 16, 2020, finding that it complied with the terms of an August 27, 2020 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On August 27, 2020, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The August 27, 2020 settlement agreement provided, in pertinent part, that: 1. With one exception noted in this paragraph, the Complainant’s signature upon this Agreement shall constitute a permanent and unconditional release and waiver by the Complainant, her heirs, executors, administrators or assigns, of any and all claims arising from the Complainant’s employment relationship with the Agency to the extent such claims might arise from any and all events addressed in the instant complaints at Agency Case Nos. 1C-374-0020-20, 1C-374-0007-19, 1C- 374-0020-19 and 1C-374-0008-18. This waiver includes claims against the Agency and the Agency’s agent, servants and employees. 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. 2021001817 2 2. The claims that the Complainant is permanently waiving include, but are not limited to, those for front pay, back pay, compensatory damages, punitive damages, interest and claims for attorney fees. This Agreement does not require the Complainant to waive any claims for workers compensation benefits that the Complainant has filed, or might file, with the United States Department of Labor and does not waive any future complaints or actions arising out of future events. 3. It is agreed that the Agency shall provide a letter to Complainant indicating why she was sent home on June 12, 2020. A copy of said letter is attached hereto and made part of this Agreement. 4. It is agreed and understood by the parties that the Agency shall pay Complainant a total of 24 hours of overtime for June 11-13, 2020. 5. It is agreed and understood by the parties that Complainant will be referred to the District Reasonable Accommodation Committee [DRAC] no later than 10 days after the signing of this Agreement. By letters to the Agency dated September 17, 2020 and October 5, 2020, Complainant, through her representative, alleged breach of provisions (1) - (4) and requested that the Agency specifically implement the terms of the subject agreement. With regard to provision (1), Complainant indicated that she had not yet received any workers’ compensation benefits and believed it was due to the Agency’s delays in responding to requests from OWCP. Concerning provision (2), Complainant argued that the copy of the letter provided is from long before the settlement agreement was executed. For provision (3), Complainant asserted she was not paid for the overtime hours. Finally, regarding provision (4), Complainant asserted it was done within the timeframe required and had not yet had any results with the DRAC. Complainant asked that the agreement be voided and her underlying EEO complaint returned to continued processing. In its November 16, 2020 final decision, the Agency determined that it had fully complied with the August 27, 2020 settlement agreement, as discussed below. Regarding provision (1), the Agency noted Complainant has not alleged that it sought to block her claim for workers’ compensation benefits filed with the Department of Labor’s Office of Workers Compensation Program (OWCP) as waived by the settlement agreement. The Agency further found, however, that a review of the instant provision does not include language relevant to any obligations of the Agency in the event that Complainant filed a claim for compensation with OWCP. Under the agreement, there are no timing obligations on the Agency with regard to Complainant’s OWCP claim. The Agency further noted that the determination and payment of workers’ compensation benefits are in the hand of OWCP and not the Agency. 2021001817 3 Regarding provision (2), the Agency noted in his letter to Complainant dated August 18, 2020, the Manager, Distribution Operations (MDO) stated that the letter from Complainant’s doctor dated June 12, 2020, indicated that it was unsafe for Complainant to work on the workroom floor. MDO stated in his August 18, 2020 letter that, based upon the restrictions identified by Complainant’s doctor, and the MDO’s conclusion that no work was available in the back lobby or elsewhere in the facility consistent with Complainant’s restrictions, Complainant was sent home in Leave Without Pay status until further notice. This letter, according to the Agency, met the requirement of provision (2) to explain why Complainant was sent home in June 2020. Regarding provision (3), the Agency noted that Complainant claimed that the Agency had not compensated her for 24 hours of overtime for June 11-13, 2020. The Agency acknowledged there was a delay in processing Complainant’s 24 hours of overtime for June 11-13, 2020. The Manager stated that as of October 27, 2020, the documents required to compensate Complainant for 24 hours of overtime for Pay Period 13, Week 1 and 2 had been prepared and submitted to Accounting for processing. Furthermore, the Manager noted that there was no specific time frame for compliance. Regarding provision (4), the Agency noted that Complainant claimed that the referral to the Disability Reasonable Accommodation (DRAC) was not submitted within 10 days of the signing of the agreement. However, the Manager explained that the effective date of the settlement agreement was August 27, 2020. He further stated that on September 6, 2020, the referral to DRAC was submitted to the Occupational Health Nurse. The instant appeal followed. ANALYSIS AND FINDINGS 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). 2021001817 4 With respect to provision (1), we find that there is no evidence that the Agency tried to block Complainant from submitting a claim for workers’ compensation with OWCP. Moreover, the agreement did not include language relevant to any obligations of the Agency, including with regard to time deadlines, in the event she filed a claim for compensation with OWCP. The actual adjudication of Complainant’s workers’ compensation claim is in the hands of the OWCP and any concerns she has with the processing of that claim should be addressed directly to OWCP. In sum, we find no evidence of a breach of provision (1) of the agreement. Regarding provision (2), we note that the record shows that Complainant was provided with a copy of the Manager’s letter dated August 18, 2020, which explains why she was sent home in June 2020. This letter appears to fully comply with the requirements of provision (2) of the agreement. Regarding provision (3), the Agency was required to pay Complainant a total of 24 hours of overtime for June 11-13, 2020. While there was no specific time frame in the agreement for the Agency’s compliance, there is evidence that the necessary paperwork was submitted on October 27, 2020, about two months after the execution of the settlement agreement, to request the overtime payment to Complainant. When there is no specific deadline provided in a settlement agreement, compliance should be examined from the perspective of whether it occurred within a reasonable period of time. While, the Agency’s compliance with this provision seems delayed, we note that the Agency took action after Complainant notified it of the lack of payment. The Commission has held that, pursuant to 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. The Commission has held that if an Agency cures a breach during the 35-day period after filing a breach claim, it will be deemed in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009). To the extent that provision (3) was breached, we find that the Agency has cured the violation. Finally, provision (4) states that the parties agreed and understood that Complainant would be referred to DRAC no later than 10 days after signing of the instant settlement agreement. The Manager represented that the effective date of the settlement agreement was August 27, 2020, and on September 6, 2020, the referral to DRAC was submitted to the Occupational Health Nurse. The record contains a copy of the Occupational Health Nurse’s letter dated September 11, 2020, to Complainant requesting information concerning her request for reasonable accommodation. As such, we conclude there is no evidence that this provision was breached by the Agency. CONCLUSION The Agency’s decision finding no breach of the subject settlement agreement was proper and is AFFIRMED. 2021001817 5 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). 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). 2021001817 6 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 April 29, 2021 Date