01A21793_r
12-16-2002
Anna Lam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anna Lam v. United States Postal Service
01A21793
December 16, 2002
.
Anna Lam,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21793
Agency No. 1F-946-1052-94
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated January 10, 2002, finding that it was in
compliance with the terms of the April 17, 1999 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(2) In exchange for the promises made by [complainant], in paragraph 1
of this agreement, the Agency agrees that:
The Agency will provide the complainant . . . with an agreed upon amount
of four thousand dollars ($4,000.00) as a one time lump sum payment
in resolution for the aforementioned case. This one time payment will
be forwarded to Payroll disbursement in Minneapolis for payment.
The Agency agrees to accommodate the medical restrictions of
[complainant] as well as provide an adjustable ergonomic chair with
lumbar support and arm rest. This chair is for the use of [complainant]
solely, and is to be kept off the work room floor prior to her reporting
to work, after her tour has ended, as well as anytime during her absence
from work. This chair is to be marked with [complainant's] name.
This chair is to be replaced in the event it is missing or can't be
located by [complainant] or damaged beyond normal ware.
The Agency agrees as a matter of [Agency] regulations and Federal
Law, that [complainant] will not be subjected to reprisal from anyone
concerning this EEO settlement agreement.
The Agency will treat [complainant] as well as other employees in a
professional manner.
By letter to the agency dated November 15, 2001, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency breached provision (D) when it
failed to treat her in a professional manner. Complainant stated that
Supervisor A is constantly harassing her and has repeatedly tried to force
her to do work against her medical limitations for an on-the-job injury.
Complainant stated that Supervisor A refused to give her work supplies
(plastic bags and tape) and safety items (gloves and face mask). Further,
complainant claimed that Supervisor A repeatedly made unprofessional and
rude remarks/comments perceived to be sexual harassment. In her letter,
complainant requested forms to file a breach of settlement claim and a
new EEO complaint.
In its January 10, 2001 decision, the agency concluded that it did not
breach the terms of the April 17, 1999 settlement agreement. The agency
stated that as a result of the Anthrax threat in the workplace, agency
headquarters mandated that gloves, masks, plastic bags, and tape be made
available to all employees who wish to use them. The agency stated
that Supervisor A made a consistent effort to provide these items to
all his employees, including complainant. The decision noted that
mandatory stand-up talks on Anthrax were to be given to all employees.
The agency stated that according to Supervisor A, the stand-up talk and
video were shown to employees in his unit on October 26, 2001; however,
complainant could not be found and was not present at the stand-up
and video. The agency also stated that according to Supervisor A,
complainant displays a negative attitude towards him and refuses to
cooperate with him to assess what job duties she can perform within her
medical limitations. The agency noted that Supervisor A stated that he
treats all employees with dignity and respect
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.
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). The Commission has further
held that 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 (5th Cir. 1984).
In the present case, the Commission finds that complainant has failed to
show that the agency breached the April 17, 1999 settlement agreement.
Specifically, we find that provision (D) requiring the agency to
treat complainant in a professional manner is too vague to be enforced.
We find that this provision fails to confer on complainant any benefit
that she was not already entitled to as a matter of law. Thus, the
agency correctly concluded that no breach of this provision occurred.
If complainant is attempting to allege that she was subjected to
discriminatory harassment after the agreement was entered into, then such
a claim should be processed as a separate complaint and not as a breach of
settlement. See 29 C.F.R. � 1614.504(c). If complainant wishes to pursue
an EEO complaint on such matters then she should initiate contact with an
EEO Counselor within 15 days after the date this decision becomes final
unless the agency is already processing the matter as an EEO complaint.
The Commission does not address in this decision whether complainant's
initial contact is timely.
Accordingly, the agency's final decision finding no settlement breach
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 16, 2002
__________________
Date