0120072321
07-31-2007
Guy N. Sponseller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Guy N. Sponseller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072321
Agency No. 4C440028005
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 6, 2007, finding that it was in
compliance with the terms of the September 21, 2005 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.
In August 2005, complainant sought EEO Counseling alleging harassment by
a coworker (CW). Complainant and the agency entered into a settlement
agreement that provided, in pertinent part, that the Manager of Operations
(RMO):
(1) agrees to meet with (complainant, CW, and certain other agency
employees), at which time RMO will discuss the zero tolerance policy:
remind all parties that issues will be addressed promptly by management
and that the policy will be enforced and that violations will not be
tolerated and that there will be consequences for violations and that
there will be no reprisals or retaliation.
Complainant again sought EEO Counseling on December 10, 2006, alleging
that he had continued to experience harassment from CW and that RMO
had not yet held the agreed-upon meeting with the various parties.
Complainant alleged that the agency was in breach of the settlement
agreement, specifically that the agency failed to prevent the harassment
and failed to hold the meeting. Complainant requested that the agency
specifically implement the terms of the agreement.
In its March 6, 2007 FAD, the agency concluded that it had not breached
the agreement. The FAD noted that the meeting was held on February
26, 2007 and that the agreement did not specify when the meeting was
to be held. The FAD did not address complainant's new allegations of
harassment. On appeal, complainant contends that by not taking steps
to end the harassment, the agency breached the agreement. Complainant
further notes that his new allegations of harassment have not been
processed by the agency.
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).
In Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955
(7th Cir. 1973), the court held that a valid contract must be based upon
consideration where some right, interest, profit, or benefit accrues
to one party or some forbearance, detriment, loss, or responsibility is
given, suffered, or undertaken by the other. Where the promisor receives
no benefit and the promisee suffers no detriment, the whole transaction
is a nudum pactum. 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).
In the instant case, pursuant to the settlement agreement, the agency
agreed to meet with the parties, enforce its zero tolerance policy, and
ensure that there would be consequences for violations of the policy.
Complainant, in turn, agreed to withdraw his EEO complaint. We find that
the agency, in merely agreeing to treat complainant in accordance with
existing statutes, regulations and policies, provided complainant nothing
more than that to which he was entitled as an employee, and accordingly,
he received no consideration for his agreement to withdraw his 2005
complaint. Based on the foregoing, we find that the settlement agreement
is unenforceable; thus, in accordance with regulations, the agency should
reinstate complainant's complaint for further processing from the point
processing ceased. In addition, the agency shall process complainant's
new allegations of harassment raised before the EEO Counselor on December
12, 2006.
ORDER (E0900)
The agency is order 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.
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
July 31, 2007
__________________
Date
2
0120072321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072321