0120113240
07-24-2012
Gregory M. Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Gregory M. Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120113240
Agency No. 66000002510
DECISION
Complainant filed a timely appeal with this Commission from a decision (Decision) by the Agency dated May 13, 2011, 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 National Law Enforcement Communication Center Coordinator at the Agency's National Law Enforcement Communication Center facility (the facility) in Dulles, Virginia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 14, 2010, Complainant and the Agency entered into a settlement agreement (Agreement) to resolve the matter. The Agreement provided, in pertinent part, that:
(1) Management has initiated a climate survey for [the facility]. The findings from the survey will be reviewed to identify issues and develop suitable responses.
(2) Management has requested funding for NICE software to include optional logging capability. In the event that the optional logging capability is not funded, other alternatives to control and limit access will be implemented.
(3) [Complainant's Manager: M] will work with USPS Law Department to identify and to be able to deliver training on co-employment for USPS employees at NLECC.
(4) Both M and [Complainant] agree to move forward to continue creating a more positive environment.
By letter to the Agency dated May 6, 2011, Complainant alleged that the Agency was in breach of the Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that M was:
inappropriately involved in prepping other members of the climate survey and serving as the liaison between the WEI group and employees in our work unit. This is a severe conflict of interest that undermines the entire climate survey. It is inappropriate for my manager as part of management to implement or communicate anything to do with the climate survey. This is something that should have been accomplished and carried out by management personnel above my manager's level.
Complainant further alleged that during an April 12, 2011 meeting with M, clause 4 of the Agreement was breached when, in response to Complainant's request for a Union representative at the meeting, M said to him "I don't think you need one" and "you know [Complainant], I'm trying to save you here. If I didn't think you were worth saving we wouldn't be doing this." In its May 13, 2011 FAD, the Agency concluded that Complainant's claim regarding M's involvement with the survey was the subject of another EEO complaint under a different Agency number and that the allegation would be addressed in that complaint. With regard to the April 12 comments, the Agency found that "there does not appear to be a basis on which to conclude that your manager's conduct was inconsistent with [clause 4 of the Agreement]. In particular, [M] said that she responded to your request without any negative intent." The Agency concluded there was no breach of the Agreement.
CONTENTIONS ON APPEAL
Complainant argues that M's April 12 statements were
a disgustingly brilliant use of double entendre to veil and disguise discrimination, and the continued discrimination engaged in by [M]. [M] utilizes insensitive and inflammatory verbiage to convey and invoke intimidation, fear, and force, but then when confronted about her actions she predictably retreats back into the traditional "helping mode" and claims she was just trying to help.
Complainant maintains that M has engaged in such seemingly innocent statements in the past on many occasions in an effort to encourage Complainant to leave his position, and that the April 12 statement is part of the same pattern of harassment and intimidation. Complainant further requests that the instant complaint be consolidated with another EEO complaint currently being processed by the Agency under Agency No. 64-000-000-2-11. The Agency requests that we affirm its Decision.
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).
In the instant case, we note that the Agency has said that the issue of M's involvement with the climate survey will be addressed in a separate Agency decision under Agency No. 64-000-000-2-11, and this appears to comply at least in part with Complainant's wishes since he has requested that the complaints be consolidated under that number. Accordingly we shall not address that claim in this decision. With regard to the issue of whether or not M breached clause 4 of the Agreement, we find that clause 4 lacks consideration and is too vague to enforce. The clause contains no objective standards by with a fact-finder may be able to judge whether or not a particular action by either party "continue[s] to creat[e] a more positive environment." Furthermore, the Agency incurred no legal detriment in "agree[ing] to move forward to continue creating a more positive environment."
When a settlement agreement lacks adequate consideration, it is unenforceable. See Collins v. United States Postal Service, EEOC Request No. 05900082 (April 26, 1990). 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). Also, a settlement agreement that is too vague to enforce is invalid. See Bibb-Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009).
Applying the above legal principles, we find that clause 4 of the Agreement at issue is invalid due to lack of consideration and for being too vague to enforce. Nothing was promised beyond what the Agency is already obligated to do and there was no legal detriment by the Agency. See Brown v. United States Postal Service, Appeal No. 020090822 (April 1, 2009) (agency agreement to address Complainant "as all other employees in a professional manner" lacked consideration). We further find, however, that whether or not the remaining clauses are sufficiently clear and provide sufficient consideration that the entire Agreement need not be voided is something that cannot be determined at this stage, given that the Agency has yet to address Complainant's breach allegation concerning the climate survey. As such, the Commission is reluctant to find at this point that the agreement is void for lack of consideration.
CONCLUSION
Based on a thorough review of the record, we find that Complainant has not shown that the Agency breached the Agreement when, in response to Complainant's request for a Union representative, M said to him "I don't think you need one" and "you know [Complainant], I'm trying to save you here. If I didn't think you were worth saving we wouldn't be doing this." Instead we find that clause 4 is too vague to enforce and lacks consideration, and that the clause should be stricken from the Agreement. Accordingly the Decision is AFFIRMED.
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 (S0610)
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. 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
July 24, 2012
__________________
Date
2
0120113240
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113240