Rosev.Geryk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 25, 2002
01A12339_r (E.E.O.C. Sep. 25, 2002)

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