0120102598
05-04-2012
Kimberlyn Crumer, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Kimberlyn Crumer,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120102598
Agency No. 4J-630-0009-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's April 15, 2010 letter of determination 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
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 3, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) [The Manager - Customer Services and Acting Supervisor - Customer Services] agree to follow the policies and guidelines of the U.S. Postal Service effective immediately.
(2) [The Manager - Customer Services and Acting Supervisor - Customer Services] agree to speak and conduct themselves in a professional manner and will not use profanity and derogatory terms to employees.
(3) [Complainant] agrees to speak and conduct herself in a professional manner to management and not use profanity and derogatory terms to management.
By letter to the Agency dated February 24, 2010, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Manager continued to use profanity and derogatory terms around her. Further, Complainant alleged that the Acting Supervisor pointed his finger in her face and expressed his anger at Complainant for filing an EEO complaint against him. Complainant asserted that she was tired of management's unprofessional behavior and that something needed to be done.
In its April 15, 2010 letter of determination, the Agency stated that an inquiry was conducted into Complainant's allegations and both management officials denied using profanity or treating Complainant unprofessionally. Specifically, the Manager stated that she had limited interactions with Complainant and instructed a Customer Services Supervisor to address Complainant in all matters. Further, the Acting Supervisor denied pointing his finger in Complainant's face and affirmed that he only conferred with Complainant on a professional level regarding work matters. The Agency concluded that it was in full compliance with the settlement agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that three weeks after the settlement agreement was signed, management officials breached it several times. Complainant alleges that she informed the Agency of the breach in December 2009 and February 2010, and did not receive a letter of determination until April 2010. Complainant states that management has continuously retaliated against her. Accordingly, Complainant requests that the Commission find that the Agency breached the settlement agreement.
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).
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, a settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (Mar. 11, 1992).
In the instant case, the Commission finds that the settlement agreement is void for lack of consideration. The agreement stated that Agency management would essentially follow its policies and procedures and "speak and conduct themselves in a professional manner." A promise by the Agency to follow its policies and to treat Complainant professionally does not constitute consideration for withdrawal of a complaint, as it only agrees to provide something to which Complainant was already entitled. See Cockrell v. U.S. Postal Serv., EEOC Appeal No. 01956101 (May 22, 1996); Brown v. U.S. Postal Serv., EEOC Appeal No. 0120090822 (Apr. 1, 2009) (agreement to address Complainant "as all other employees in a professional matter" lacked consideration). Complainant, in essence, has received no consideration for withdrawing the underlying complaint. Thus, the Commission finds that the entire settlement agreement is void and unenforceable.
Accordingly, the Commission VACATES the Agency's letter of determination finding no breach, and REMANDS the complaint to the Agency for further processing in accordance with the Order set forth below. 1
ORDER
The Agency is ordered to resume the processing of the settled matter from the point processing ceased pursuant to 29 C.F.R. Part 1614. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall notify Complainant in writing that it has reinstated her complaint. The Agency must provide a copy of this 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), 9-18 (Nov. 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 (R0610)
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 (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
May 4, 2012
Date
1 The Commission notes that Complainant additionally appears to be alleging subsequent acts of reprisal and harassment after the settlement agreement was signed. Therefore, if Complainant wishes to pursue such claims, Complainant should request to amend her complaint in writing. 29 C.F.R. � 1614.106(d).
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0120102598
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102598