01A14145_r
10-05-2001
Cushmeer H. Muhammad, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cushmeer H. Muhammad v. United States Postal Service
01A14145
October 5, 2001
.
Cushmeer H. Muhammad,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14145
Agency No. 1-A-072-0001-01
DECISION
Complainant alleged breach of a November 29, 2000 settlement agreement.
In response, the agency issued a decision finding no breach of the
agreement, and complainant appealed to this Commission.
The settlement agreement provided, in pertinent part, that:
If the need for a part-time flexible (PTF) arises on Tour 2 and if it's a
new hire, management will consider moving the new PTF to Tour 1 and moving
[complainant] to Tour 2. If it would be a downgrade for [complainant],
then [he] will have the option to take the transfer or not.
In his claim of breach, dated May 15, 2001, complainant argued that
another Tour 1 PTF was moved to Tour 2. In its final decision finding
no breach, the agency noted that the person transferred to Tour 2 was
not a new hire. The agency found that there was a list of employees
desiring transfer from Tour 1 to Tour 2. Since the position was not
being filled by a �new hire,� the agency found no breach of the agreement.
On appeal, complainant contends that the agreement made him eligible
for the first available transfer to Tour 2, but the agency transferred
another employee instead.
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, is binding on both parties.
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 parties' intent as expressed in the contract,
not some unexpressed intention, 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 generally
has 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).
One requirement to establish a valid contract is consideration from
both parties. Namely, each party must incur some legal detriment in
exchange for the other party's promise. Generally, the adequacy or
fairness of consideration is not addressed, so long as some legal
detriment is incurred in exchange for the bargain. If one party
incurs no legal detriment, however, then the Commission may render the
agreement void for lack of consideration. See DuBois v. Social Security
Administration, EEOC Request No. 05990808 (September 26, 1997) (citing
Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30,
1994) and Terracina v. Department of Health and Human Services, EEOC
Request No. 05910888 (March 11, 1992)).
Complainant agreed to forgo his complaint. The agency, however, obligated
itself to nothing. It agreed to �consider� taking some action, assuming a
number of conditions occurred. Therefore, the Commission finds that the
settlement agreement lacks consideration, and is void. The agency must
reinstate complainant's underlying complaint, and resume it's processing.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the complaint is
REMANDED for reinstatement from the point processing ceased.
ORDER
The agency must resume processing complainant's underlying complaint
from the point processing ceased. Within thirty (30) calendar days of
the date this decision becomes final, the agency must notify complainant
of the reinstatement of his complaint, and inform him of its status.
The agency must provide the Compliance Officer with a copy of this letter,
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
October 5, 2001
__________________
Date