Darlene Tate, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 17, 1999
01990240_r (E.E.O.C. Sep. 17, 1999)

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).