01a54132r
09-22-2005
Anna L. Simsich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Anna L. Simsich v. United States Postal Service
01A54132
September 22, 2005
.
Anna L. Simsich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01A54132
Agency No. 4E990002704
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 21, 2005, finding that it was
in compliance with the terms of the April 22, 2004 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.
The settlement agreement provided, in pertinent part, that:
Within 60 days, [the Station Manager] will go over workplace standards
with all employees.
Within 15 to 30 days, [the Station Manager] will go over workplace
standards with supervisors and managers.
A memo will be provided at management meeting advising that [complainant]
wants appropriate conversation in accordance with workplace standards.
[Complainant] will advise [the Station Manager] if inappropriate
conversation has occurred.
[The Station Manager] will ask [two employees] how they know about or
if they know about [complainant] previously working in a massage parlor.
On March 29, 2005, complainant alleged that the agency was in breach
of the settlement agreement, and requested that the agency specifically
implement its terms. Specifically, complainant alleged that management
and co-workers continued to talk about her personal life and participate
in harassment and failed to have a meeting with two employees.
In its April 21, 2005 FAD, the agency concluded that it did not breach
the agreement. On appeal, complainant restates her allegations.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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).
In the instant case, the Station Manager provided a statement addressing
complainant's breach claims. The Station Manager stated that she
held a �stand up� with employees regarding sexual harassment issues on
April 30, 2004, in compliance with provision 1. The Station Manager
further asserted that she discussed sexual harassment issues with
managers on April 28, 2004, in compliance with provision 2. The Station
Manager further alleged that she complied with provision 5 by asking two
employees about their knowledge of complainant's former work. The agency
further maintained that a memorandum regarding complainant's demand
for appropriate conversation in the workplace was issued to managers
on April 28, 2004, in accordance with provision 3.<0> Upon review,
we find that the agency has proven its compliance with the settlement
agreement by a preponderance of the evidence and therefore find no breach.
We note that complainant's claim that she has been subjected to further
harassment should be processed as a new complaint under 29 C.F.R. �
1614.106, not as a breach claim. 29 C.F.R. � 1614.505(c). Therefore,
if complainant wishes to pursue a new complaint regarding harassment,
she should contact an EEO Counselor within 45 days after the date this
decision becomes final.
Accordingly, the Commission AFFIRMS the FAD finding no breach of the
settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_September 22, 2005_____________
Date
0 1We note that provision 4 concerns
complainant's obligations to the agency.