0120112992
02-15-2013
Llane J. Dolido, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Llane J. Dolido,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112992
Agency No. 4F-940-0171-07
DECISION
On May 20, 2011, Complainant filed the instant appeal with the Commission alleging that the Agency had breached the terms of the October 10, 2007 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.
The settlement agreement provided, in pertinent part, that: (5) All employees will continue to be treated fairly and equally at the Windsor Post Office. By letter to the Agency dated March 29, 2011, Complainant alleged that the Agency was in breach of the settlement agreement.1 When the Agency did not respond to the breach allegations, Complainant filed the instant appeal.
On appeal, Complainant contended that the Agency breached provision (5) of the settlement agreement when it issued her a 7-day suspension on July 23, 2010 and a 14-day suspension on February 16, 2011. Specifically, Complainant argued that the discipline is evidence of the Agency's failure to treat her fairly and equally. In addition, Complainant asserted that the Agency's "hidden motive" behind the suspensions was to retaliate against her for the prior EEO activity which resulted in the settlement agreement.
In opposition to Complainant's appeal, the Agency asserted that the cited disciplinary actions are new issues and do not reflect a breach of the settlement agreement.
Generally, the adequacy or fairness of the consideration of 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. See Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 10, 1994) (citing Terracina v. Dep't of Health & Human Serv., EEOC Request No. 05910888 (Mar. 11, 1992).
In the instant case, provision (5) of the settlement agreement provided that "[a]ll employees will continue to be treated fairly and equally." This provision does not confer on Complainant any benefit that she was not already entitled to receive as a matter of law. See Fenderson v. U.S. Postal Serv., EEOC Appeal No. 01A31670 (May 2, 2003) (provision in settlement agreement that complainant will be treated equally, fairly, and with dignity and respect is void for lack of consideration). Accordingly, we find that provision (5) of the settlement agreement is unenforceable and void for lack of consideration.2 Moreover, EEOC Regulation
29 C.F.R. � 1614.504(c) provides that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints under � 1614.106, rather than under � 1614.504. In this regard, we note that the record reflects that Complainant has already filed a formal EEO complaint (Agency No. 4F-940-0046-11) on June 1, 2011 regarding the suspensions.
Based on the review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency did not breach the October 10, 2007 settlement agreement.
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
__2/15/13________________
Date
1 The Agency acknowledged the existence of the letter in its brief in opposition to Complainant's appeal. The record, however, does not contain a copy of the letter.
2 As Complainant does not allege that the Agency breached provisions (1)-(4) of the settlement agreement, the Commission makes no determination on those provisions in this decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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