0120120966
04-20-2012
Kimmathy Hawkins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Kimmathy Hawkins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120966
Agency No. 4H-330-0062-10
DECISION
On December 15, 2011, Complainant filed an appeal with this Commission after she notified the Agency that that she believed it breached the terms of a settlement agreement into which the parties entered. On December 14, 2011, the Agency issued a letter of determination finding that it was in compliance with the settlement agreement. The appeal is timely and is accepted. 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 her breach of settlement agreement claim, Complainant worked as a part time Mail Handler for the Agency in Opa Locka, Florida. On January 20, 2011, she entered into a settlement agreement with the Agency resolving an EEO complaint, as well as all but two specified existing or potential legal actions by her against the Agency arising out of her employment up until the date of the settlement agreement. The settlement agreement provided, in pertinent part, that:
Reasonable Accommodation...[T]he USPS will refer Ms. Hawkins' case to the District Reasonable Accommodation Committee ("DRAC'') in her District. The DRAC will undertake it normal process to request appropriate medical and other information from Ms. Hawkins to ascertain the extent of any impairment/disability, whether reasonable accommodation is warranted, whether reasonable accommodation is possible in Ms. Hawkins' existing position, and if not, then whether a funded position exists to which she is entitled by law. At present, Ms. Hawkins states that she cannot perform the essential (core) functions of her carrier job with or without accommodation, so it is likely that the matter will turn on whether any vacant, funded positions, full-time or part-time, at or below Ms. Hawkins grade level exist. If so, a job will be offered to Ms. Hawkins. (A vacant, funded part-time job such as a PTF [part-time flexible] clerk would only be offered if no full-time job existed)....
In addition to the DRAC review, the undersigned USPS attorney, although not a member of DRAC, will advise DRAC on this matter and ensure that the proper review and analysis is performed. [The Agency attorney] will also work with applicable USPS management in terms of possible accommodation, if any, as management retains the final decision on potential accommodations, after DRAC makes its recommendations. This is more than is normally available to employees who pursue accommodation through the DRAC process.
By letter to the Agency dated November 16, 2011, Complainant alleged that the Agency breached the settlement agreement, and requested that it implement its terms. Specifically, she alleged that the Agency gave her a part time clerk position (Mail Handler), when full-time positions were available. She contended that on October 26, 2011, she received documentation that 72 Mail Handler positions, which would accommodate her restrictions, were open and available.
Prior to entering into the settlement agreement, Complainant was a part-time flexible (PTF) carrier. In its December 14, 2011 FAD, the Agency found that it did not breach the settlement agreement. It found under the settlement agreement Complainant would only be offered a job if "a vacant, funded position exists to which she was entitled by law" "at or below your grade level." The Agency found that the 72 Mail Hander positions were withheld jobs for Mail Handlers who were going to be excessed from two plants. It found that once Complainant crossed to the Mail Handler craft, she became the junior person on the seniority list and cannot jump over senior people into a full-time position. The Agency found that offering Complainant one of these positions would violate the seniority or promotion provisions of the labor contract, and the settlement agreement language of Complainant being reassigned "at or below your grade level" showed there was no intent to promote her to a full-time position.
On appeal, Complainant contends that the burden is on the Agency to prove that offering a full time Mail Handler position to her would compromise the seniority status of other potential applicants.
In opposition to the appeal, the Agency reiterates the findings in its FAD. It submits a declaration by an Agency Manager of Labor Relations, along with excerpts of the collective bargaining agreement (CBA) and Memorandums of Understanding (MOU). The Manager writes that he is responsible for administering the CBAs between the Agency and its unions, and pursuant to the reasonable accommodation process Complainant was transferred into the Mail Handler craft. He explained that transferring Complainant to a full time Mail Handler position would have violated the seniority provisions of the CBA with the Mail Handlers. He indicates the DRAC located the position to which Complainant was reassigned.
The Agency submits the declaration by the Agency attorney who participated in the settlement negotiations and signed the settlement agreement for the Agency. The Agency attorney writes that when the settlement agreement was being negotiated, he believed Complainant was a full-time carrier, and she never mentioned during negotiations that she was a PTF. The attorney writes that the reason they put in the language in the parentheses that "a vacant, funded part-time job such as a PTF clerk would only be offered if no full-time job existed" was because he believed Complainant was a full-time carrier and to indicate she would not be demoted to part-time as a reasonable accommodation unless no other position was available. He writes there was no intent by himself or the Agency to promote Complainant to a full-time position, and doing so would violate the applicable CBA. He writes that the Agency's intent in including in the settlement agreement language that the DRAC review would be whether a "vacant, funded position exists to which she is entitled by law" was to limit the potential accommodation to only what the law allows, not provide more than afforded by the law. He writes that the settlement agreement makes clear that "management retains the final decision on potential accommodations, after DRAC makes its recommendations."
In its argument the Agency recounts the declarations of the Agency Manager of Labor Relations and the Agency Attorney, and argues that to the extent parol evidence is needed to interpret the settlement agreement, the Agency attorney's declaration on the meaning of the settlement agreement should be referenced. The Agency argues that arguably the provision affording Complainant accommodation is not enforceable because it only provides that to which she is entitled by law. It argues that nevertheless the settlement agreement should be upheld because Complainant received other consideration, i.e., participation by the Agency's attorney in the accommodation process, which is more than normally available to employees who pursue accommodation, and a waiver of claims that left some claims alive.
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).
We agree with the Agency's argument that the reasonable accommodation provision of the settlement agreement did not provide Complainant anything more than to which she was entitled by law. For example, the reasonable accommodation provision provides that if Complainant was reassigned as a reasonable accommodation, DRAC would determine whether a funded position exists to which she is "entitled by law," and management retained the final decision on potential accommodations, after DRAC made its recommendations. But the settlement agreement also contains language that a vacant, funded part-time job such as a PTF clerk would only be offered if no full-time job existed. We find, however, that given the above limiting language, the Agency did not promise Complainant anything more than what was entitled by law, i.e., reasonable accommodation for a disability.
To the extent that the above contradictory language creates ambiguity, we resort to extrinsic evidence to aid in the interpretation of the settlement agreement. Here, the Agency's attorney, who helped negotiate the settlement agreement states he thought Complainant was a full time employee, and the Agency never intended to give Complainant a promotion to a full time position as a reasonable accommodation, but only to give her, as the settlement agreement states, a reassignment to which she was "entitled by law." Under the Rehabilitation Act, an Agency is not required to promote an employee as a form of reasonable accommodation. Accordingly, Complainant is not entitled to a full-time position under the settlement agreement.
We find that the settlement agreement is void for lack of consideration. 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. When, however, one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994). A term in a settlement agreement to do what is already required by law is not consideration. Walters v. United States Postal Service, EEOC Appeal No. 01A45165 (Nov. 24, 2004). We agree with the Agency that the reasonable accommodation provision of the settlement agreement provided nothing more than required the Rehabilitation Act, i.e., to engage in the reasonable accommodation process and reasonably accommodate Complainant. We disagree with the Agency that consideration could be found elsewhere in the settlement agreement. The involvement in the Agency's attorney in the reasonable accommodation process comprises no legal determent on the Agency. Also, Complainant's less than total waiver of all her legal actions against the Agency arising from her employment up to the signing of the settlement agreement regards the consideration Complainant gave, not consideration she received from the Agency.
Since the record suggests that Complainant received her part time Mail Handler position as a result of a reasonable accommodation process required by the Rehabilitation Act, nothing in this decision should disturb her placement into that position.
CONCLUSION
The FAD is REVERSED. The settlement agreement into which the parties entered on January 20, 2011, is void. The Agency shall comply with the Order below.
ORDER
The Agency shall resume processing of all informal and formal EEO action(s) in the EEO administrative process which were closed by the settlement agreement within 15 calendar days after this decision becomes final.
Evidence showing resumption of processing of EEO administrative actions must be sent 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 (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
April 20, 2012
__________________
Date
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0120120966
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120966