01A34032_r
10-07-2003
Cathy A. Henry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cathy A. Henry v. United States Postal Service
01A34032
October 7, 2003
.
Cathy A. Henry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34032
Agency No. 4G-700-0089-03
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 4, 2003, finding that it was in
compliance with the terms of a February 27, 2003 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The February 27, 2003 settlement agreement provided, in pertinent part,
that:
(1) [Manager, Customer Services] agrees to talk to the alleged harassers
and witnesses about the situation;
(2) [Manager, Customer Services] will reinforce that there will be no
retaliation allowed against [complainant] because of her charges;
(3) [Manager, Customer Services] will refer [complainant] for EAP
counseling. He will set up a meeting with [a named agency official]
tomorrow. He will bring to [the named agency official's] attention
[complainant's] concerns about compensation for days lost due to stress;
and
(4) [Complainant's sister] agrees to be a sounding board and a reminder
of the principles discussed in mediation. [Complainant's sister] and
[Manager, Customer Services] agree to be in a communication about progress
and concerns.
By letter to the agency dated May 7, 2003, complainant alleged that the
agency breached the agreement. While not expressly claiming breach
of provision (2), complainant stated that she is not going to tolerate
abuse from her co-workers, and that the agreement �states no retaliation
and no harassing.� Specifically, complainant alleged that on May 2,
2003, a co-worker precased the mail for complainant's May 3, 2003 route
without their Supervisor's permission. Complainant further alleged that
on May 3, 2003, the Supervisor instructed her to precase a route while
a co-worker was not. Furthermore, complainant stated she was subjected
to retaliation and harassment because the co-worker �wanted to show me
if you precase me, I'll precase on you.�
In its June 4, 2003 final decision, the agency found no breach.
On appeal, complainant reiterates that the settlement agreement was
breached, and claims that she was under duress when she signed the
agreement.
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 O 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).
We determine that the agency properly found no breach. Complainant, on
appeal, contends that she is being harassed by the agency as a result
of the settlement agreement. The Commission has held that a claim of
reprisal in violation of a settlement agreement's no reprisal clause
is to be processed as a separate complaint rather than as a breach
of the settlement agreement. See Bindal v. Department of Veterans
Affairs, EEOC Request No. 05900225 (August 9, 1990). Additionally,
29 C.F.R. � 1614.504(c) provides that claims that subsequent acts of
discrimination violate a settlement agreement shall be processed as
separate complaints. Therefore, if complainant desires to pursue these
separate claims through the EEO process, she is advised to contact an
EEO Counselor thereon.
Furthermore, although on appeal complainant claims the she signed the
agreement under duress, she has presented no evidence of duress or
coercion. The Commission concludes that complainant has not shown that
the agency failed to comply with the terms of the settlement agreement.
Accordingly, the agency's finding of no breach of the February 27,
2003 settlement agreement was proper and 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
October 7, 2003
__________________
Date