01a41314
04-26-2004
Caroline Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Caroline Martinez v. United States Postal Service
01A41314
April 26, 2004
.
Caroline Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41314
Agency No. 4-G-780-0182-03
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated November 12, 2003, finding no breach of a September
15, 2003 settlement agreement. The Commission accepts the appeal. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
By correspondence dated April 24, 2003, complainant contacted the EEO
Office. Complainant claimed that she had been returned to full duty
at her previous position, with no �rehab� job offer from the Office of
Workers' Compensation Programs (OWCP). Complainant averred that the
agency reassigned her with no prior notice whatsoever, and indicated that
this position far exceeds her current physical limitations. Complainant
claimed discrimination on the basis of disability. The parties resolved
this matter with the instant settlement agreement.
The September 15, 2003 settlement agreement provided, in pertinent
part, that:
(1) By October 1, 2003, [complainant] will provide her supervisor...[with]
Form(s) CA-17 completed and updated by her physician(s) identifying
applicable, current job restrictions and work tolerances.
(2) On October 10, 2003, [complainant's supervisor] will provide to
Human Relations Specialist.....the details of an updated, accurate
rehabilitation job offer for [complainant] that accommodates the physical
limitations supplied by Form(s) CA-17 presented by [complainant].
(3) By October 15, 2003, HR Specialist....will supply the formal
rehabilitation job offer for [complainant] to Waco Postmaster...to
present to [complainant] on that date.
(4) By October 25, 2003, [complainant] will accept or reject the formal
rehabilitation job offer.
By December 1, 2003, [complainant's supervisor] will meet with
[complainant] to offer appropriate, available job skills training for
her finalized rehabilitation position.
By correspondence dated September 23, 2003, complainant informed the EEO
office that she would be delayed in fulfilling provision (1) because
her physician had to coordinate his assessment with OWCP, noting that
she informed her supervisor of this delay. Furthermore, complainant
requested another re-dress at a later date, and expressed the hope that
her physician and OWCP can properly assess her limitations and make her
a suitable new job offer.
In correspondence dated October 11, 2003, complainant made her prior
correspondence, contending that she had asked that the implementation of
the settlement agreement be ceased so that OWCP would be involved in her
new job offer. Complainant claimed that the current settlement agreement
is not valid because it does not include OWCP. Complainant argued
that a rehabilitation job offer must be approved by OWCP. Complainant
claimed that the agency already �violated� her by reassigning her to an
unsuitable position without any participation from OWCP. Complainant
further argued that the OWCP process must be used in making her a new
job offer. By letter to the agency dated October 28, 2003, complainant
requested that her complaint be reinstated. Complainant noted that the
schedule outlined in the settlement agreement had not been adhered to.
In further correspondence, dated November 3, 2003, complainant requested
that the agency acknowledge her September 23, 2003 letter asking that the
settlement agreement be rescinded and her complaint reinstated. Again,
complainant asserted that OWCP must be included in the rehabilitation
job offer process, and must be included in any settlement agreement
designed to make her a suitable job offer.
In its final decision, the agency acknowledged complainant's November 3,
2003 breach claim, and her request that the agency declare the settlement
agreement null and void and reinstate her complaint. In addressing her
request that OWCP be included in a new settlement agreement, the agency
advised complainant that this action could not be accomplished in the
EEO process. The agency further advised complainant that her supervisor
was willing to �honor� the terms of the settlement agreement as soon as
complainant provided the Form CA-17 to him, notwithstanding the expiration
of the dates in the settlement agreement provisions. The agency also
stated that once the Form CA-17 is completed by complainant's physician,
a formal rehabilitation job offer will be made, noting that all job offers
had to be reviewed and approved by the Department of Labor before they
are officially offered. Based on this assessment, the agency determined
that there was no breach of the settlement agreement.
In Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955
(7th Cir. 1973), the court held that a valid contract must be based upon
consideration where some right, interest, profit, or benefit accrues
to one party or some forbearance, detriment, loss, or responsibility is
given, suffered, or undertaken by the other. Where the promisor receives
no benefit and the promisee suffers no detriment, the whole transaction
is a nudum pactum. See Collins v. United States Postal Service, EEOC
Request No. 05900082 (April 26, 1990) (a settlement agreement that was
not based upon adequate consideration was unenforceable).
Pursuant to the instant settlement agreement, the agency agreed that
it would provide complainant with a rehabilitation job offer based on
the information provided by her physician in a completed Form CA-17.
Complainant, in turn, agreed to withdraw her EEO complaint. We find
that by merely agreeing to treat complainant in accordance with existing
statutes and regulations, the agency provided complainant nothing more
than that to which she was entitled as an employee covered by the OWCP.
We find that she received no consideration for her agreement to withdraw
her complaint. We note that the agency agreed to complete various stages
of the job offer process by certain dates, but we note further that these
dates have expired. Moreover, although the agency has agreed to continue
to �honor� the agreement upon complainant's completion of provision
(1), we find that in doing so, it does not obligate itself to undertake
any action beyond what is required in the OWCP rehabilitation job offer
process once any eligible employee submits a completed Form CA-17.
Based on the foregoing, we find that the settlement agreement is
unenforceable; thus, in accordance with regulations, the agency should
reinstate complainant's complaint for further processing from the point
processing ceased. See 29 C.F.R. � 1614.504.
Accordingly, we VACATE the agency's final decision, and we REMAND this
case to the agency to reinstate complainant's complaint at the point at
which processing ceased, as set forth in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ordered to reinstate complainant's underlying complaint
(Agency No. 4-G-780-0182-03) at the point at which processing ceased,
and continue to expeditiously process her complaint.
A copy of pertinent documentation confirming the above action must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
April 26, 2004
__________________
Date