0120122458
10-16-2012
Dale C. Powell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Dale C. Powell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122458
Agency Nos. 4G-752-0023-03, 4G-752-0028-04, 4G-752-0456-08, 4G-752-0410-10
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 6, 2012. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Prestonwood Station in Dallas, Texas. The record reflects that Complainant entered into three EEO settlement agreements with the Agency dated September 19, 2005, November 6, 2008, and December 2, 2010.
Settlement Agreement # 1 (SA1) (Dated September 19, 2005, Agency Case Nos. 4G-752-0023-03, 4G-752-0028-04)
SA1 provided, in pertinent part, that:
1. Complainant Powell will receive $150.00 lump sum, plus an additional $25.00 to cover any taxes/deduction from that lump sum.
2. Management will abide by the agreements signed by a [a named Station Manager, M1] and [a named Chief Steward/EEO Representative] dated [December 22, 2003] (Attachment 2)1 and [February 24, 2004] (Attachment 3)2.
3. Management agrees to follow USPS/NALC rules and regulations in exhausting the Overtime Desired List (ODL) and PTFs prior to utilizing employees not on the ODL when overtime is needed.3
Settlement Agreement # 2 (SA2) (Dated November 6, 2008, Agency Case No. 4G-752-0456-08)
1. Prestonwood [management] will treat [Complainant] with dignity and respect in accordance with the Joint [statement] and all other rules and regulations within the NALC and the [Agency] contract, ELM, M-39, M-41 etc.
2. [Complainant] will be given clear and concise instructions when requested.
Settlement Agreement # 3 (SA3) (Dated December 2, 2010, Agency Case No. 4G-752-0410-10)
1. Management will agree to mutually discuss any issues with [Complainant] in regards to any Future 3996 in which [he] may submit for time needed. This process should be a mutual agreement between both parties and should be held with dignity and respect.
2. Furthermore, [Complainant] will be given an opportunity to correct any alleged deficiencies with discussions before any discipline may arise.
3. In conclusion, DOIS numbers will not be the sole determinate when issuing discipline or no such discipline will be brought forth.
4. [Complainant] shall not be disciplined for failure to meet standards except in cases of unsatisfactory effort, which must be based [on]...documented unacceptable conduct that led to the carriers failure to meet office standards.
5. [Complainant] must be given an opportunity to correct [his] deficiencies before [he is] issued discipline for all other issues as well.
On January 1, 2012, Complainant, through his representative, alleged breach of these settlement agreements and requested that the terms of the agreements be specifically enforced.
On April 6, 2012, the Agency issued a determination on the matter. Regarding SA1, the Agency found that provisions (2) and (3) were void for lack of consideration because they merely provide the Agency to abide by existing grievance settlements and to abide by existing rules and regulations. However, the Agency found that SA1 was still valid because consideration was exchanged through provision (1) of the agreement.
Regarding SA2, the Agency found provision (1) void for lack of consideration reasoning that it merely provides the Agency to abide by existing rules and regulations. However, the Agency still found that consideration existed through provision (2) of SA2. The Agency noted that Complainant claimed that provision (2) of SA2 was breached when Complainant was given discipline after he was given instructions that were not clear and concise. The Agency found that it did not breach this provision because management's instructions to Complainant were clear for him not to work overtime.4
Regarding SA3, the Agency found that all provisions were void for lack of consideration. The Agency found that provision (1) merely agrees for the Agency to abide by Article 41.3.G of the NALC/USPS collective bargaining agreement (CBA).5 The Agency found that provisions (2) and (5) merely agree for the Agency to abide by Section 115.1 of Handbook M-39 incorporated into the CBA through Article 19.6 According to the Agency, Provision (3) of SA3 merely agrees for the Agency to abide by the July 30, 2007 settlement with NALC.7 According to the Agency, provision (4) of SA3 merely agrees for the Agency to abide by Article 19 of the CBA.8 Moreover, the Agency found that since all the provisions of SA3 were void for lack of consideration, the agreement needed to be set aside and the underlying complaint would be remanded for processing from the point processing ceased.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that we order the Agency to enforce all three settlement agreements. Complainant asserts that the Agency did not have any intention of abiding by the agreements.
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).
SA1
The Commission concurs with the Agency that provisions (2) and (3) of SA1 are void for lack of consideration. The Commission is not generally concerned with the adequacy or fairness of the consideration in a settlement agreement, as long as some legal detriment is incurred as part of the bargain. See Terracina v. Dep't of Health & Human Services, EEOC Request No. 05910888 (March 11, 1992). When, however, one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See Morita v. Dep't of the Air Force, EEOC Request No. 05960450 (Dec. 12, 1997). Here, in provisions (2)-(3), the Agency agreed to provide nothing more than is already required under existing rules and regulations. A term in a settlement agreement to do what is already required by law is not consideration. See id.; See Walters v. U.S. Postal Serv., EEOC Appeal No. 01A45165 (Nov. 24, 2004). Therefore, the Commission finds that provision (2)-(3) are void for lack of consideration. Since consideration was exchanged in SA1 through provision (1), we do not find that SA1 is invalid in its entirety, but rather reformed without provisions (2) and (3).
SA2
The Commission concurs with the Agency that provision (1) of SA2 is void for lack of consideration. However, we further find that provision (2) that management provide Complainant with clear and concise instructions is too vague to be enforced. The Commission would be unable to determine whether the Agency had complied with such a requirement. Based on the foregoing, we find that SA2 is invalid and we remand to the Agency the underlying complaint from the point processing ceased.
SA3
The Commission concurs with the Agency that SA3 is void for lack of consideration. As set forth in its detailed analysis in its final decision, the provisions of SA3 are merely requiring the Agency to follow existing rules and regulations set forth in the CBA. Thus, the Agency properly remanded the underlying complaint to the Agency for further processing from the point processing ceased.
The Commission notes that, as set forth above, two of the three settlement agreements were deemed void for lack of consideration. The Commission advises the Agency that Agency personnel, who are involved in negotiating and executing EEO settlement agreements, should be properly trained in the principles of what constitutes valid settlement agreements, such as what constitutes adequate consideration.
CONCLUSION
Accordingly, we AFFIRM the Agency's findings that it is not in breach of SA1, and that SA3 is void for lack of consideration and that Complainant's underlying complaint for SA3 shall be reinstated. However, the Agency's decision regarding SA2 is REVERSED and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) days from the date this decision becomes final, the Agency is ORDERED to resume the processing of Complainant's underlying complaints for SA2 and SA3. The Agency shall notify Complainant in writing that his has reinstated these underlying complaints.
The Agency must provide a copy of the 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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
October 16, 2012
Date
1 Attachment 1 is a "USPS-NALC Joint Step A Grievance Form."
2 Attachment 2 is a "NALC-USPS Dispute Resolution Process Settlement Form" dated February 24, 2004.
3 The provisions are re-numbered herein for ease of reference.
4 The Agency, in its final decision, noted that "the December 8, 2011 discipline is the subject of a formal complaint, 4G-752-0042-12, and is being processed as an allegation of a subsequent act of discrimination and has been accepted for investigation."
5 According to the Agency, Article 41.3.G of the CBA provides, in pertinent part, that: "The Employer will advise a carrier who has properly submitted a Carrier Auxiliary Control Form 3996 of the disposition of the request promptly after review of the circumstances at that time."
6 According to the Agency, Article 19, provides, in pertinent part, that: "The delivery manager must make every effort to correct a situation before resorting to disciplinary measures."
7 According to the Agency, the July 2007 settlement with the NALC provided, in pertinent part, that: "DOIS projections are not the sole determinant of a carrier's leaving or return time, or daily workload. As such, the projections cannot be used as the sole basis for corrective action."
8 According to the Agency, Article 19 of the CBA provides, in pertinent part, that: "No carrier shall be disciplined for failure to meet standards, except in cases of unsatisfactory effort which must be based on documented unacceptable conduct that led to the carrier's failure to meet office standards."
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0120122458
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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