01A12339_r
09-25-2002
Rose V. Geryk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rose V. Geryk v. United States Postal Service
01A12339
September 25, 2002
.
Rose V. Geryk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12339
Agency No. 1B-011-0001-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 20, 2000, finding that it
was in compliance with the terms of a September 14, 2000 settlement
agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405.
The settlement agreement obligated the agency to take the following
actions:
(1) Move the outside ashtrays 50 feet away from the main employee
entrance;
(2) Post additional �no smoking� signs near the main employee entrance
which will designate the 50 feet no smoking area;
(3) Continue to monitor no smoking policy through random checks and
attempts to follow-up on reports of smoking in non-smoking areas;
(4) Locate a locker for [complainant] on the workroom floor or other
nearby smoke free area so that [complainant] will not need to use the
locker room in the ladies' room;
Purchase "smoke eater" type ash tray(s) for the area 50 feet away from
the main employee entrance.
By letter to the agency dated October 6, 2000, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically implement its terms. Complainant alleged that the
agency had knowledge to which she was not aware prior to entering into
settlement negotiations. Specifically, complainant refers to a letter
from the Occupational Safety and Health Administration (OSHA) which was
posted at her work site regarding a complaint from postal workers being
exposed to second-hand smoke. Complainant contends that she should have
been made aware of the OSHA complaint before she agreed to mediate her
complaint. She alleges further that the agency's knowledge of the OSHA
matter is evidence that agency officials engaged in bad faith in the
settlement of her complaint. Complainant also claims that the agency
acted in bad faith when certain management officials with authority to
settle her complaint left the scheduled mediation early to attend to
other matters. Complainant asserts that agency officials had knowledge
of the possibility that her job would be eliminated due to "automation
excessing." Complainant alleges that the possible elimination of her job
would impact her settlement with respect in particular to the provision
obligating the agency to provide her a locker in her present work area.
Complainant alleges further that offers by agency officials present at
the mediation to help her with "resolution and restitution for harm done"
pressured her into settling her complaint against the agency.
In its November 20, 2000 FAD, the agency concluded that it had complied
with the agreement. The agency indicated that it installed ashtrays, no
smoking signs and the purchase of "smoke eater" ashtrays in accordance
with the provisions of the settlement. The agency also indicated in
its final decision that it continues to monitor the no smoking policy in
non-smoking areas. The agency acknowledges that initially, the locker
provided to complainant pursuant to provision 4 of the agreement, did not
have hooks. However, the agency indicates that hooks have since been
installed in the locker provided to complainant on the workroom floor
in full compliance with the settlement agreement. The agency indicated
further that the letter from OSHA was not received until the day after
complainant's mediation. The FAD also indicates that complainant's job
has not been eliminated; and that she remains in the position she held at
the time she entered into the agreement. Finally, the agency asserts that
agency officials with authority to settle complainant's complaint were
present at the mediation despite complainant's claims to the contrary.
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 instant case, we find that the complainant has failed to
demonstrate that the agency breached any portion of the September 14,
2000 agreement between the parties. In her claim of breach, complainant
asserts that agency officials did not engage in good faith in settling
her complaint. Moreover, she claims that she was pressured into signing
the agreement. The record contains no evidence of pressure or coercion
on the part of agency officials. Upon review of the record herein,
we find no persuasive evidence to support complainant's allegation of
breach of the September 14, 2000 agreement between the parties.
Accordingly, we find that the agency's decision that it complied with the
settlement agreement was proper. The finding of no breach is AFFIRMED
for the reasons set forth herein.
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
September 25, 2002
_________________
Date