Susan L. Sims, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 5, 2008
0120081717 (E.E.O.C. Aug. 5, 2008)

0120081717

08-05-2008

Susan L. Sims, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Susan L. Sims,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120081717

Agency No. 4B030002307

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated February 7, 2008, finding that it was

in compliance with the terms of the July 31, 2007 settlement agreement

into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �

1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1) Management agrees to hold Service Talks pertaining to sexual

harassment on the workroom floor with 4-6 weeks;

(2) If [complainant] is feeling unsafe in the workroom environment

she can go to [Management Official 1] with request [sic] for support.

By letter to the agency dated December 3, 2007, complainant alleged that

the agency was in breach of the settlement agreement, and requested

that the agency specifically implement its terms. Specifically,

complainant alleged that the agency failed to hold a service talk on

sexual harassment. In addition, complainant contends that MO1 was

not available for her to talk to and that she has "not been made to

feel I could go to a supervisor or one who is concerned in my behalf."

Complainant further stated she had been told that certain statements

made during mediation prior to reaching the agreement had not been kept

confidential but provided no additional specific details.

In its February 7, 2008 FAD, the agency concluded that it had not breached

the agreement. Specifically, the agency found that at the time of the

agreement, MO1 did not know that he would be detailed to another plant,

effective September 1, 2007. The agency further noted that when MO1 went

on the detail, complainant was told to find another Management Official

she would feel comfortable talking with to take his place, and that

complainant subsequently chose MO2 to be that person. The FAD further

noted that with MO2 as the new contact, details of the agreement had to be

disclosed to him. Finally, the FAD found that sexual harassment training

sessions had been provided, as per the agreement. On appeal, complainant

states that she spoke to MO2 about new allegations of harassment and

that she feels that MO2 is not handling such allegations appropriately.

In addition, she states that a Union worker who was not involved in the

mediation leading up to the agreement was aware of certain details about

confidential conversations that were held during mediation.

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).

In the instant case, we note that the agency has provided evidence

in the form of employee tracking sheets showing that employees were

required to attend a one hour course entitled "Working Together with

Dignity and Respect." Accordingly, complainant has failed to meet her

burden of establishing that the agency failed to provide the sexual

harassment training required under the agreement. As for the second

provision, that complainant could talk to MO1 for support, we find

that this provision void for lack of consideration. Generally, the

adequacy or fairness of the consideration in a settlement agreement

is not at issue, as long as some legal detriment is incurred as part

of the bargain. However, when one of the contracting parties incurs

no legal detriment, the provisions of the agreement will be set aside

for lack of consideration. See MacNair v. United States Postal Service,

EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army,

EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department

of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992)).

Here, provision 2 does not require the agency to incur any legal detriment

at all. The provisions fails to confer on complainant any benefit that

she was not already entitled to as a matter of law or policy, namely to

seek help and support from management when she feels harassed. Therefore,

the Commission finds that provision 2 is void for lack of consideration.

However, given that consideration was exchanged through other provisions

of the agreement, we do not find that the entire settlement is invalid,

but rather reformed without provision 2.

As regards the claim that a Union worker knew of conversations that were

held during mediation, complainant has failed to provide sufficient detail

to meet her burden of establishing, by a preponderance of the evidence,

that a breach occurred.

To the extent that complainant claims that she has been subjected to

additional harassment following the agreement, the Commission has held

that such claims should be processed as a new, separate complaint, rather

than as a breach allegation. See Bindal v. Department of Veterans Affairs,

EEOC Request No. 05900225 (August 9, 1990). Accordingly, the Commission

AFFIRMS the final agency decision finding no breach of the agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (S0408)

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 (Z0408)

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

August 5, 2008

__________________

Date

2

0120081717

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120081717