Gina M. Jones, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 29, 2000
01986364 (E.E.O.C. Feb. 29, 2000)

01986364

02-29-2000

Gina M. Jones, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gina M. Jones, )

Complainant, )

)

v. ) Appeal No. 01986364

) Agency No. 1-G-1061-92

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.<1> (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and (64

Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited

as 29 C.F.R. �1614.504(b)).<2>

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

Complainant filed a formal EEO complaint wherein she claimed that she

was discriminated against on the bases of her sex (female) and race

(black) when on October 24, 1991, she was ordered to undergo a fitness

for duty exam, which ultimately led to her referral to the Employee

Assistance Program. Complainant also claimed that on November 27, 1991,

her supervisor issued her a letter of warning for irregular attendance.

The complaint was resolved by a settlement agreement entered into on

July 23, 1993. The agreement stated in relevant part that:

1. [Complainant's supervisor] will discuss any/all allegations made by

other employees about me before making any decisions.

2. I will be treated equally as all other employees.

3. Management will seal my Fitness For Duty Examination (Dated 10/30/91)

and EAP referral resulting from that examination.

4. The agency will not condone racial slurs or jokes in the workplace,

and I will not be harassed by management [complainant's supervisor].

By letter dated June 30, 1998, complainant notified the agency that it

had breached the first, second, and fourth provisions of the settlement

agreement. According to complainant, on June 1, 1998, she told a

mail handler that was standing outsider her supervisor's office that

the supervisor was talking with a coworker, and he could come back

later. Complainant indicated that she received no response and that

she next told the mail handler that she did not want him waiting for a

couple of hours to speak to the supervisor. Complainant claimed that

after she said why don't you come back later, the mail handler stated

to her in a very loud voice �This is none of your business.� According

to complainant, her supervisor did not correct the situation immediately

and the mail handler was not reprimanded for his actions. Complainant

claimed that she has not been treated equally and that management has

caused her to work in a hostile environment. Complainant stated that

the agreement was also breached when it was mentioned in a letter dated

June 24, 1998, that she walked out of a service talk meeting on violence.

Complainant further stated that she had been harassed about attending the

service talk meeting whereas other coworkers have missed such meetings

on numerous occasions.

In its final decision, the agency determined that the settlement

agreement has not been breached. The agency stated that management

investigated the verbal altercation that occurred on June 1, 1998, and

that complainant's supervisor handled the situation as diplomatically

as possible, while maintaining the rights of both individuals involved.

The agency noted that complainant's supervisor denied ever harassing

complainant and he further stated that he treats all of his employees

equally. Additionally, the agency stated that the first and fourth

provisions of the agreement specifically referred to complainant's former

supervisor, who retired on February 3, 1995. Thereafter, complainant

filed the instant appeal.

In response, the agency asserts that the first and fourth provisions of

the settlement specifically apply to complainant's former supervisor,

who has retired and was not involved in the incident that occurred on

June 1, 1998. Further, the agency maintains that even if the settlement

agreement had not specified a particular supervisor, complainant's current

supervisor did not violate the first and fourth terms of the agreement.

The agency argues that the first provision was not invoked given that

no situation arose where allegations were made by another employee

about complainant's behavior. With regard to the fourth provision of

the agreement, the agency asserts that this provision concerns racial

remarks and that complainant presented no argument or evidence that the

mail handler's remark was racial in nature or motivated by race. As for

the second provision, the agency maintains that the complainant did not

offer any argument or evidence that this situation or something similar

happened to others and that she was treated differently than others.

Finally, the agency asserts that the second provision does not insulate

complainant from a fellow employee's discourteous behavior.

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 claims that the agency breached the

settlement agreement by not reprimanding the mail handler that shouted

at her and therefore it caused her to work in an hostile environment.

Complainant also claims that the agreement was violated when it was

mentioned in a letter dated June 24, 1998, that she walked out of

a service talk meeting on violence in the workplace. According to

complainant, she was harassed about going to a service talk meeting yet

other coworkers have missed service talks on numerous occasions.

With regard to the verbal altercation between complainant and the mail

handler, we find that the agency did not breach the settlement agreement.

The argument did not involve allegations made by other employees against

complainant. There is also no indication that racial slurs or jokes

occurred during the altercation. Complainant has failed to demonstrate

that the agency afforded her less than equal treatment in this incident

in comparison with other employees.

With respect to the issues of a written reference being made to

complainant walking out of a service talk meeting and the alleged

harassment about her going to service talk meetings, we find that the

agency failed to address these issues and the record is insufficient

to allow a determination of whether these incidents were a violation of

the subject agreement. Accordingly, we find that these issues must be

REMANDED to the agency for a supplemental investigation pursuant to the

ORDER below.

ORDER

The agency is ORDERED to take the following actions:

The agency shall address complainant's contentions that the subject

agreement was breached when it was mentioned in a letter dated June

24,1 998, that she walked out of a service talk meeting and when she

was purportedly harassed about going to service talk meetings.

Supplement the record with all relevant evidence regarding complainant's

allegations of breach.

Within thirty (30) calendar days of the date this decision becomes

final, the agency shall issue a final decision regarding complainant's

allegations of breach, clearly setting forth the reasons for the

determination.

A copy of the agency's new final decision must be sent to the Compliance

Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. ��1614.407, 1614.408) and 29 C.F.R. �1614.503(g).

Alternatively, the complainant 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. ��1614.407 and 1614.408. 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 complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

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 (T1199)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

February 29, 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 1The final agency decision was issued on July 10, 1998.

The instant appeal was received by the Commission on August 19, 1998.

The record does not establish when complainant received the final

agency decision. Absent evidence to the contrary, we find that the

instant appeal was timely filed.

2 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.