01992286
03-01-2000
Diana Williams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Diana Williams, )
Complainant, )
)
v. ) Appeal No. 01992286
) Agency No. 1A-113-0061-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely appealed the agency's decision that denied her
claim that the settlement agreement entered into between the parties
had been breached. (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and (see
64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 29 C.F.R. �1614.504(b)), and is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �1614.405)
.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Complainant filed an informal EEO complaint wherein she alleged that
she was discriminated against on the basis of her sex (female) when her
supervisor told her she was beautiful and asked her for a kiss.
The complaint was resolved by a settlement agreement entered into on May
1, 1997. The agreement stated in relevant part that the agency would
stop harassment; treat complainant with dignity, respect, and courtesy;
there would be no retaliation; the behavior of supervisors would be
monitored; sexual harassment service talks would be conducted; there
would be sexual harassment training for supervisors; a letter of warning
would be rescinded; there would be access to the Plant Manager in the
event there is a repeat incident; and the matter would remain private and
confidential. The settlement, without any specific details, also provided
for removal from Tour I and referral to the Employee Assistance Program.
By letter dated June 18, 1997, complainant notified the EEO Complaint
Processing Specialist of several incidents that occurred subsequent to
the execution of the settlement agreement. According to complainant,
a supervisor pointed a hand in the shape of a gun at her and pretended
to shoot at her. Complainant stated that this supervisor watched her
work for hours and that she was followed when she walked off the floor.
Complainant also claimed that other employees assigned to the flat sorter
were allotted breaks but she was not. Additionally, complainant stated
that another supervisor went to her neighborhood and told her neighbors
about a problem, but the supervisor omitted the information that a
supervisor had been the instigator. Complainant asserted that another
supervisor screamed at her, waving her arms when she made a minor mistake.
According to complainant, this supervisor yelled loud enough for the
entire floor to hear even though complainant is hearing-impaired.
Complainant stated that the supervisor also grabbed her arm and took
her partner away, thus leaving her to do the work of two people for
the entire shift. Complainant further claimed that a supervisor's
girlfriend has harassed her and that a friend of the girlfriend has been
stalking her in her neighborhood. Complainant also stated that she was
humiliated and the agreement was violated when an agency official gave
a safety talk on May 14, 1997. According to complainant, the official
stated that he was the victim of a false sexual harassment claim.
By letter dated July 2, 1997, the EEO Complaint Processing Specialist
advised complainant that the incidents raised in her letter should
be reported to a management official at complainant's work facility.
In a response dated July 9, 1997, complainant's attorney informed the
EEO Complaint Processing Specialist that she instructed complainant to
directly contact management officials about her complaints. Complainant's
attorney stated that if management action is inappropriate, complainant
will then contact the EEO Office.
Complainant contacted an EEO Counselor on August 28, 1998. Complainant
stated that there had been a breach of the settlement agreement's
provisions regarding her being treated with dignity, respect, and
courtesy; that the harassment stop; and that no reprisal occur.
Specifically, complainant referenced her supervisor's treatment
of her in July 1998, during a safety lecture concerning sexual
harassment. Complainant also indicated that the agency violated the term
that her underlying complaint would remain private and confidential.
By letter dated September 18, 1998, a Senior EEO Specialist informed
complainant that she needed to cite the terms of the agreement that
were violated and specifically how they were violated. The Senior
EEO Specialist sent complainant a second letter on November 23, 1998,
requesting the same information. By letter dated December 4, 1998,
complainant provided the agency with a description of how the settlement
agreement was breached. Complainant cited the same incidents that were
raised in her letter dated June 18, 1997. Complainant also stated that
in June 1998, she was accused of returning late from breaks; and that in
September 1998, a supervisor made faces at her, pointed his finger at her,
and threw the flat toward her so that all the magazines were scattered.
Complainant claimed that in November 1998, this supervisor yelled at
her, directed an obscene gesture toward her, and knocked her hard with
his shoulder. Complainant further claimed that an interpreter was not
present at two safety training meetings. Finally, complainant stated
that in November 1998, she was humiliated when a supervisor grabbed her
arm and yelled when a machine jammed.
In its final decision dated December 30, 1998, the agency determined
that the settlement agreement has not been breached. The agency stated
that the management officials cited by complainant emphatically denied
being disrespectful to her. The agency determined that none of the cited
management officials were directly involved with the settlement agreement.
The agency noted that complainant did not discuss any repeat infractions
with the Plant Manager. With regard to the sexual harassment service talk
in May 1997, the agency determined that complainant was not mentioned
by name and there was no mention of specific incidents related to her
complaint. The agency concluded that the other incidents referenced by
complainant are not breach issues and should instead be addressed with
an EEO Counselor. The agency stated that the underlying complaint would
not be reinstated. Thereafter, complainant filed the instant appeal.
In response, the agency asserts that complainant renewed her claim
of breach in an untimely manner. The agency states that a reasonably
prudent person would not have waited more than a year to renew pursuit of
claims that had previously been raised with the EEO Office. The agency
maintains that complainant is not claiming the breach of any substantive
provision of the settlement agreement, but instead is claiming reprisal
or further discrimination. The agency maintains that new claims of
reprisal are to be treated as new complaints
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency
shall resolve the matter and respond to the complainant, in writing.
If the agency has not responded to the complainant, in writing,
or if the complainant is not satisfied with the agency's attempt to
resolve the matter, the complainant may appeal to the Commission for a
determination as to whether the agency has complied with the terms of
the settlement agreement or action. The complainant may file such an
appeal 35 days after he or she has served the agency with the allegations
of noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
In the instant matter, complainant claimed that the agency breached
the settlement agreement with regard to the provisions dealing
with her being treated with dignity, respect, and courtesy, that
the harassment be stopped; that no retaliation take place; and
also that her underlying complaint remain private and confidential.
Initially, with regard to complainant's claim as to the privacy and
confidentiality of the underlying complaint, we find that complainant
has not established that during the safety talks in May 1997 and July
1998, any information about her complaint was identified, conveyed or
otherwise disseminated. Therefore, we find that no breach occurred
with regard to that provision of the settlement. We find that similar
to no reprisal clauses, provisions that an individual will be treated
in a professional manner, do not provide the individual with anything
that they were not already entitled to receive, i.e., these provisions
do not provide any consideration in exchange for the withdrawal of
EEO matters. Consequently, like no reprisal clauses, we find that any
allegation of breach of such provisions must be raised as new claims.
See Bruns v. United States Postal Service, EEOC Appeal No. 01965395
(June 24, 1997) (provision in settlement agreement that complainant was
to be treated fairly and with dignity and respect was too vague to allow
a determination of whether the agency had complied with the provision);
Dove v. United States Postal Service, EEOC Appeal No. 01963814 (January
3, 1997) (provision in settlement agreement requiring management to act
professionally toward complainant was too vague to be enforceable);
Lesnick v. United States Postal Service, EEOC Appeal No. 01951082
(February 23, 1996) (provision in settlement agreement that complainant
was to be treated with same respect as that accorded any human too vague
to determine compliance). As we have stated, claims that no reprisal
clauses have been breached should also be raised as separate new claims
of discrimination. Bindal v. Department of Air Force, EEOC No. 05900225
(August 9, 1990). We further find that alleged violations of a stop
harassment clause are to be processed as new claims of discrimination.
Consequently, complainant may, if she so wishes, contact an EEO Counselor
to pursue such claims as separate claims of discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 1, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.