Cynthia Brown, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 1, 2009
0120090822 (E.E.O.C. Apr. 1, 2009)

0120090822

04-01-2009

Cynthia Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cynthia Brown,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090822

Agency No. 4H-330-0283-08

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated November 19, 2008, finding that it was in

compliance with the terms of an August 13, 2008 settlement agreement.

See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �

1614.405.

The August 13, 2008 settlement agreement provided that:

Both parties agree that they will work toward and make every effort for

better communication. Management of the USPS will address [Complainant]

as all other employees in a professional manner. [Complainant] will not

face retaliation for filing this EEO complaint. A copy of the EEO file

and Settlement will be held in accordance with the mandates of the EEOC.

By letter to the agency, dated September 14, 2008, complainant alleged

breach. Specifically, complainant alleged that on September 10, 2008,

her name was called out over the public address system, and she was asked

to report to the office concerning her mileage for the day. Complainant

stated that after her supervisor (S1) gave her a document to fill out

her mileage and submit to the Acting Supervisor (AS), she returned to

her office and "within 5 minutes [S1] appeared, saying I need to see

you in my office. Very strongly, [S1] said 'What did you say? What did

you say? Did you threaten him? What does 'reap you sow' mean? What did

you say?" concerning AS. Complainant stated that she repeatedly told S1

that she did not say anything to AS. Complainant stated that S1 then

called AS to report to the office, and AS "then said, 'You didn't just

threaten me and my children? You didn't just say to me reap and sow?'"

Complainant stated that after she denied saying anything to AS, S1 called

her a "liar."

In its November 19, 2008 final decision, the agency found no breach.

The agency stated that according to S1, he learned that complainant and

a few other carriers did not properly scan their mileage for September 9,

2008. S1 stated that he addressed complainant and the other carriers and

asked them to get the ending mileage so he could fix the mileage report.

S1 stated that the other carriers submitted their mileage, but that

complainant did not do so. S1 stated that he went to complainant's route

and asked her why she did not provide him the requested information.

S1 stated that after complainant claimed that there was no clerk

in the cage so she could not get the key for the vehicle to get the

mileage, he immediately arranged for a clerk to give complainant a key.

S1 stated that when complainant submitted her mileage, he asked her for

both the time she departed and returned to the office. S1 stated that

at that point, complainant rolled her eyes and said in a nasty manner

"you can go get it from my timecard." S1 stated that he felt compelled

to remind complainant of the instant agreement to address each other in

a professional manner to which complainant responded "whatever."

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).

The plain meaning rule, however, loses its relevance when a settlement

agreement lacks adequate consideration because such agreements are

unenforceable. 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). 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 settlement 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)).

In the instant case, the parties agreed to ensure that they would work

toward and make every effort for better communication, and that the

agency will address complainant "as all other employees in a professional

manner." The agency also agreed to ensure that complainant "will not

face retaliation for filing this EEO complaint." We find that, only

one party, complainant incurred a legal detriment by withdrawing her

formal EEO complaint. The agency, merely agreeing to treat complainant

in accordance with existing policies and procedures, provided complainant

nothing more than that to which she was entitled as an employee, so she

received no consideration with respect to the settlement agreement.

Based on the foregoing, we find that the settlement agreement is

unenforceable and is void for lack of consideration. Therefore, we find

that complainant's original complaint shall be reinstated.

Accordingly, the Commission VACATES the agency's final decision. This

matter is REMANDED to the agency for further processing in accordance

with the ORDER below.

ORDER

The agency is ordered to process the underlying complaint (Agency

No. 4H-330-0283-08) from the point where processing ceased. The agency

shall acknowledge to complainant that it has reinstated and resumed

processing of complainant's underlying complaint.

A copy of the agency letter of acknowledgement must be sent to the

Compliance Officer as referenced below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 (R0408)

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 (Z1008)

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

April 1, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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