Irene Diaz, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 18, 2001
01A15084_r (E.E.O.C. Dec. 18, 2001)

01A15084_r

12-18-2001

Irene Diaz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Irene Diaz v. United States Postal Service

01A15084

December 18, 2001

.

Irene Diaz,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A15084

Agency No. 4-A-070-0110-01

DECISION

Complainant appealed to this Commission from the agency's August 3,

2001 final decision finding that it was in compliance with the terms of

the April 17, 2001 settlement agreement into which the parties entered.

The settlement agreement provided, in pertinent part, that:

(1) [Complainant] and [management] agree that they would like to continue

to work together in a mutually respectful and professional manner,

i.e. making requests politely and responding to inquiries.

(3) If [complainant] disagrees with an interpretation of a[n] [agency]

rule or regulation, she and [management] �agree to disagree� and

[complainant] may pursue a grievance. In the interim [complainant]

will follow her supervisor's instruction unless it is unsafe.

(4) Management agrees to continue to apply all [agency] rules and

regulations uniformly.

By letter dated June 5, 2001, complainant alleged breach of the

agreement. Specifically, complainant claimed that management harassed

her by subjecting her to increased scrutiny, �glaring� at her, �barking�

orders at her to humiliate her in front of her coworkers, yelling at

her about needing too much assistance, and otherwise harassing her.

In its final decision, the agency noted that complainant had complained

about prior supervisors, had problems with authority, and did not have

any hostile actions taken against her. Therefore, the agency found no

breach of the settlement agreement.

Any settlement agreement knowingly and voluntarily agreed to by the

parties, reached at any stage of the complaint process, is binding on both

parties. See 29 C.F.R. � 1614.504(a). 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).

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 withdraw her underlying complaint, but the agency

obligated itself to nothing. The agency's concessions do not include

any new burden. Therefore, the Commission finds that no valid contract

exists, and complainant's underlying complaint must be reinstated for

further processing. Further, the agency should have processed claims of

breach involving subsequent acts of harassment or reprisal as new claims

of discrimination, not as a claim of breach of the settlement agreement.

See 29 C.F.R. � 1614.504(c). If complainant wishes to pursue these

claims as a new complaint of discrimination, she must contact an EEO

Counselor within fifteen (15) calendar days of the date she receives

this decision.<1>

CONCLUSION

Accordingly, the agency's decision is REVERSED, and the underlying

complaint is REMANDED for further processing.

ORDER

The agency is ordered to resume the processing of 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 her complaint, and inform her 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

December 18, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1For purposes of timeliness, the agency should consider complainant's

claim of breach as her initial EEO Counselor contact.