01A01866_r
05-26-2000
Kathleen E. McGrath, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathleen E. McGrath, )
Complainant, )
)
v. ) Appeal No. 01A01866
) Agency No. 4A-110-0143-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
__________________________________ )
DECISION
Complainant filed the instant appeal from the agency's decision dated
November 16, 1999 finding that the agency did not breach the settlement
agreement entered into by the parties on May 28, 1999.<1>
The settlement agreement provided:
Management will make every effort to insure that the work environment at
the Great Neck Post Office is free from any form of �Hostility�, be it
�Sexual or Violent�. The Zero Tolerance Policy on Sexual Harassment and
Violence in the Work Place shall be strictly enforced. All employees
shall view the U.S. Postal Service video, �Stop Sexual Harassment�.
Any supervisor or manager who has not received the training on Sexual
Harassment shall be given said training. Management shall conduct
services talks on �Sexual Harassment� twice weekly for a period of
three months. Management shall post in an area that's frequented by
all employees Poster 21, �USPS Policy on Sexual Harassment�, �Racial,
Ethnic an Sexual Orientation Remarks Policy Statement�, and the �Joint
Statement on Violence and Behavior in the Workplace�.
The parties both stated that the agreement also provided that complainant
would be provided with a parking space. The portion of the agreement
concerning the parking space is faint and difficult to read in the
copies of the agreement in the record. Both parties agree, however,
as to the substance of the parking space provision.
Complainant alleged that the agency breached the agreement. The agency
found that it did not breach the agreement.
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides
that any settlement agreement knowingly and voluntarily agreed to by the
parties shall be binding on both parties. If the complainant believes
that the agency has failed to comply with the terms of a settlement
agreement, then the complainant shall notify the EEO Director of the
alleged noncompliance "within 30 days of when the complainant knew
or should have known of the alleged noncompliance." 29 C.F.R. �
1614.504(a). The complainant may request that the terms of the settlement
agreement be specifically implemented or request that the complaint be
reinstated for further processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
On appeal complainant alleges that: (1) management failed to make every
effort to insure that the work environment was free from any form of
hostility; (2) two employees did not view the sexual harassment video;
(3) although management gave service talks on sexual harassment,
some persons were disruptive and made light of the subject; and (4)
management did not provide the parking space until October 2, 1999.
Regarding complainant's claim of breach of the portion of the settlement
agreement requiring the agency to �make every effort to insure that the
work environment at the Great Neck Post Office is free from any form of
�Hostility', be it �Sexual or Violent',� the Commission finds that this is
a claim that a subsequent act of discrimination violated the settlement
agreement. Claims that subsequent acts of discrimination violate a
settlement agreement should be processed as a separate complaint rather
than as a breach claim. 29 C.F.R. � 1614.504(c). Complainant indicates
that she has filed a separate complaint on the matter.
The agency has provided documentation showing that it has shown the
video specified in the agreement to its employees. Complainant has
not provided the agency or the Commission with the names of the two
individuals who purportedly did not see the video. Therefore, we find
that complainant failed to show that the agency breached the video
provision of the settlement agreement.
The Commission finds no provision in the agreement forbidding disruptive
behavior during the sexual harassment service talks. Complainant admits
the talks were provided. The record fails to show that the purported
disruptive incidents were of such a nature as to somehow invalidate the
nature of the talks or evidence bad faith by the agency.
Regarding the parking space provision, the Commission finds that the
agreement did not provide a date by which the parking space needed to be
provided. Complainant admits she received the space approximately four
months after the agreement was entered into. The Commission finds that
the four month time frame to assign the parking space, in the absence
of a time limit in the agreement, was not unreasonable, and therefore
did not constitute a breach of the agreement.
The Commission finds that complainant has failed to show that the agency
breached the settlement agreement.
The agency's determination finding that the agency did not breach the
settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 26, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.