0120122836
06-12-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122836
Agency No. ARUSAR10JUN02461
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 23, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Unit Administrator at the Agency's 115th Combat Sustainment Support Battalion facility in South El Monte, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 13, 2011, Complainant and the Agency entered into a settlement agreement (Agreement) to resolve the matter. The Agreement provided, in pertinent part, that:
(c) Upon receiving adequate qualitative and quantitative data from [Complainant], the [Agency] will change the Technical Competence and Responsibility/Dependability blocks on [Complainant's] 20080701-20090630 TAPES performance evaluation form from "Success" to "Excellence." This change is contingent upon [Complainant] providing [the Rater] the qualitative and quantitative data to support the rating change within 30 days of the last signature on this agreement. The determination of adequacy of the data is in [sic] the discretion of [the Rater]. The change to the performance evaluation will be initiated by [the Rater] within 60 days of her determination that the data is adequate to support the ratings [sic] of "Excellence."
By letter to the Agency dated April 19, 2012, Complainant alleged that the Agency was in breach of the Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to change her performance evaluation as promised under the Agreement.
In its May 23, 2012 FAD, the Agency concluded that it had not breached the Agreement. The Agency noted that the Rater explained that Complainant had not sent any new information sufficient to justify a change in her rating and that the information supplied by Complainant in support of a higher rating was the same information Complainant had initially submitted when she received the original rating. The Rater found that this information did not support a rating higher than the rating Complainant originally received. The Agency therefore concluded that it was in compliance with the Agreement.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
The Commission has long refrained from giving effect to settlement agreements containing promises that are wholly "illusory" in nature. See Obrien v. Postmaster General, EEOC Request No. 05920560 (February 11, 1993) (citing Ingram v. GSA, EEOC Request No. 05880565 (June 14, 1988)). An illusory promise has been defined as one that makes performance of the promise "entirely optional with the promisor." Penn v. Ryan Family Steak House, 269 F. 3d 753, 759 (7th Cir 2001).
In the instant case we note that in provision (c), the issue over which Complainant agreed to withdraw her complaint, her changed evaluation, is contingent on whether or not the information supplied by Complainant met the approval of the Rater. The Agreement provided no specific information telling Complainant what information would be sufficient to cause the Rater to award a higher rating and what would not be sufficient. As such the matter was purely at the discretion of the Rater. Complainant contends the information she supplied justified a higher rating while the Rater contends it did not, but there are no objective criteria to determine who is right. Thus the matter of Complainant's changed evaluation remained in the Agency's control and hence the promise made by the Agency and relied on by Complainant was illusory. Furthermore, the Agreement did not contain any other consideration granted to Complainant in exchange for her withdrawal of her complaint. Finally, we note that Complainant has asked that her complaint be reinstated.
CONCLUSION
Because the Agreement contains an illusory promise to Complainant and thus lacks consideration, and because it contains no other clause granting Complainant consideration in exchange for her withdrawal of her complaint, we find the Agreement to be void and we VACATE the FAD and REMAND the matter to the Agency for further processing in accordance with the Order below.
ORDER
The Agency is ORDERED to resume the processing of the settled matter from the point processing ceased pursuant to 29 C.F.R. Part 1614. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall notify Complainant in writing that it has reinstated her EEO complaint. The Agency must provide a copy of this notice to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 12, 2014
__________________
Date
2
0120122836
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122836