01990240_r
09-17-1999
Darlene Tate, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Darlene Tate, )
Appellant, )
) Appeal No. 01990240
v. ) Agency No. 9110378
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On October 5, 1998, appellant timely appealed the agency's final decision
finding that it did not breach the terms of the settlement agreement
into which the parties entered. See 29 C.F.R. ��1614.402, .504(b);
EEOC Order No. 960, as amended.
Appellant and the agency entered into a binding settlement agreement
on November 4, 1991, concerning the allegations appellant raised with
a counselor on September 16, 1991. The settlement agreement provided,
in pertinent part, that:
(3) Management will allow [appellant] to work in a safe harassment-free
work environment, not subject to unlawful discrimination including but
not limited to sexual harassment.
Management has given a Service Talk to the Address Information System
Unit on sexual harassment, and will schedule quarterly talks on this
and other topics such as Equal Employment Opportunity/Affirmative Action
(EEO/AA) and professional conduct in the workplace.
By letter dated August 4, 1998, appellant alleged that the agency breached
the settlement agreement when: (1) she was subjected to harassment when
a co-worker came into the office knowing that appellant would be alone,
and masturbated in front of appellant; and (2) no quarterly talks have
been held pursuant to paragraph 5 of the settlement agreement.
In its final decision dated September 4, 1998, the agency declined
to reinstate appellant's complaint, finding that it had not breached
the settlement agreement. The agency asserted that allegation (1) did
not violate a particular term of the settlement agreement. Further,
the agency noted that the offending co-worker was relocated to another
building after the agency conducted an investigation of the incident.
With respect to allegation (2), the agency found that appellant's notice
of breach was untimely.
On appeal, appellant contends that she was subjected to a harassing
work environment by the co-worker's lewd act, and by the co-worker's
presence in appellant's building during the following eight months.
Regarding timeliness, appellant argues that she did not realize that
the agency's failure to conduct quarterly talks breached the agreement
until she reviewed a copy of the November 4, 1991 settlement agreement
on August 1, 1998.
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. In addition, 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).
EEOC Regulation 29 C.F.R. �1614.504(c) provides that �allegations that
subsequent acts of discrimination violate a settlement agreement shall
be processed as separate complaints under �1614.106 or �1614.204, as
appropriate, rather than under this section.� Further, the Commission has
held that a complaint which alleges reprisal or further discrimination
in violation of a settlement's "no reprisal" clause, is to be processed
as separate complaints and not as a breach of settlement. See Parker
v. Department of the Army, EEOC Request No. 05960025 (Aug. 29, 1996);
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(Aug. 9, 1990); 29 C.F.R. �1614.504(c). In the present case, the
Commission finds that paragraph (3) of the November 4, 1991 settlement
agreement is sufficiently analogous to a no-reprisal clause that
allegation (1) should have been processed as a separate allegation of
discrimination. The Commission finds that although allegation (1) does
not constitute a breach of the November 4, 1991 settlement agreement, the
agency must process the matter as a separate complaint of discrimination
on remand.<1>
EEOC Regulation 29 C.F.R. �1614.504(a) requires a complainant to notify
the EEO Director, in writing, of an alleged breach within 30 days of when
the complainant knew or should have known of the alleged noncompliance.
Appellant failed to raise allegation (1) until August 4, 1998, almost
seven years after the agency's non-compliance began. Appellant should
have had a reasonable suspicion of the agency's non-compliance when
quarterly talks were not held in her work place. Further, appellant's
ignorance of the provisions in the settlement agreement does not excuse
the untimeliness of her allegation of breach.
CONCLUSION
Accordingly, the agency's decision that allegation (1) does not constitute
a breach of the settlement agreement is VACATED, and the allegation is
REMANDED for further processing. The agency's decision with respect to
allegation (2) is AFFIRMED.
ORDER
The agency is ORDERED to perform the following:
The agency is ORDERED to process the remanded allegations in accordance
with Subpart A of 29 C.F.R. Part 1614. Within fifteen (15) calendar
days of the date this decision becomes final, the agency shall
notify the appellant in writing that the agency has assigned an EEO
Counselor to counsel the appellant regarding the remanded allegation
of discrimination. Within forty-five (45) calendar days of the date
this decision becomes final, the agency shall issue to the appellant a
notice of her right to file a formal discrimination complaint unless the
appellant agrees in writing to extend the counseling period for no more
than sixty (60) calendar days. Alternatively, the appellant may agree
to a ninety (90) calendar day counseling period if the agency has an
established dispute resolution procedure.
The agency is ORDERED to send to the Compliance Officer as referenced
below, a copy of the agency's notice to the appellant of the assignment
of an EEO Counselor, a copy of the agency's notice to the appellant of
her right to file a formal complaint, and a copy of any written agreement
signed by the appellant that extends the time period for EEO counseling.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
Sept. 17, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1It is well-settled that, unless the conduct is very severe, a single
incident or a group of isolated incidents will not be regarded as
creating a discriminatory work environment. See James v. Department
of Health and Human Services, EEOC Request No. 05940327 (Sept. 20,
1994). The conduct identified in allegation (1) would appear to be
sufficiently severe as to state an independent claim of discrimination.
See EEOC Policy Guidance on Current Issues in Sexual Harassment (1990);
Hayes v. United States Postal Service, EEOC Appeal No. 01954703 (Jan. 23,
1998) rev. den. EEOC Request No. 05980372 (June 17, 1999).