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

Equal Employment Opportunity Commission

Mar 5, 2021

Appeal No. 2021000150 (E.E.O.C. Mar. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Xavier P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021000150 Agency No. 4J-606-0132-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated August 13, 2020, 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 compliance action, Complainant worked as a Supervisor of Customer Service, E 17, at the Agency’s Fort Dearborn facility in Chicago, Illinois. On August 27, 2019, Complainant and the Agency entered into a settlement agreement to resolve the above referenced EEO matter. The settlement agreement provided, in pertinent part, that: (1) This settlement agreement is in full and complete settlement of all claims which Complainant has filed or instituted up to the date this Agreement is fully executed relating to his employment with the Postal Service. . . . 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. 2021000150 2 (2d) The parties agree [that] within seven (7) days of the date of this agreement, management shall refer Complainant to the District Reasonable Accommodation Committee (DRAC). (3) Complainant’s schedule shall be 11:30 A.M. to 8:00 PM when the Window Unit closes at 6:00 PM, Complainant must remain gainfully employed and shall either revise dock operations and / or help supervisor carriers until the end of his shift. As background, Complainant filed an earlier breach claim, asserting that the agreement was breached because he believed the settlement agreement mandated that he not do any retail work after 6:00 PM. He did not claim there was a delay in the District Reasonable Accommodation Committee (DRAC) referral. The Agency issued a determination decision, dated May 11, 2020, finding no breach. By letter to the Agency dated June 10, 2020, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to make a referral within seven days of the date of execution of the Agreement. Meanwhile, Complainant submitted a request for reasonable accommodation. He contends that while waiting to hear back on his reasonable accommodation request, he learned that management did not make the previous referral required under the agreement. Further, on July 6, 2020, the Agency issued its DRAC decision, denying his request for reasonable accommodation to work from home. That decision is not before us. In its August 13, 2020 FAD, the Agency concluded Complainant’s breach claim was untimely.2 The Agency also noted that Complainant’s earlier breach claim did not reference the delay in the DRAC referral. Because the Agency had since cured the breach, the Agency reasoned it was now in compliance. On September 15, 2020, Complainant filed this appeal. Neither party filed a brief in this matter. 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). 2 The Agency acknowledged that Complainant wanted to initiate a new EEO claim, “which we are processing herein as an additional breach allegation.” 2021000150 3 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). We find the Agreement was valid and binding on both parties. In the instant case, the Agreement required the Agency to refer Complainant to the District Reasonable Accommodation Committee (DRAC) within seven days of the date of the Agreement. The parties dispute whether the Agency met this obligation within the seven days. It is undisputed, however, that the Agency subsequently referred Complainant to the DRAC. We find that the Agency cured the breach. Consequently, we find that Complainant failed to show that the Agency is currently non- compliant. Finally, we note that to the extent that Complainant wishes to pursue claims that occurred subsequent to the settlement date, those claims are outside the scope of this settlement agreement. To the extent that Complainant wishes to pursue a new claim, including a reasonable accommodation claim, he should bring those to the attention of the EEO Counselor. We also caution the Agency that the duty to provide reasonable accommodation is ongoing. See Buck S. v. USPS, EEOC Appeal 0120180137 (April 3, 2019). CONCLUSION Accordingly, we AFFIRM the Agency’s Breach Determination. 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. 2021000150 4 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). 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. 2021000150 5 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 March 5, 2021 Date