01a53705r
09-29-2005
Ross G. Wallen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Ross G. Wallen v. United States Postal Service
01A53705
September 29, 2005
.
Ross G. Wallen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A53705
Agency No. 4H-335-0116-03
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 18, 2005, finding that it
was in compliance with the terms of the February 20, 2003 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:
(1) Seven day time off suspension dated January 24, 2003 will be held
in file for one year.
(2) [Complainant] agrees to withdraw/dismiss his EEO charge and grievance
relating to this case.
(3) After 6 months, Postmaster/OIC would review the suspension and
determine, in their discretion, if the suspension would be removed and
[complainant] notified of same.
(4) Management will continue to treat [complainant] fairly and similarly
to other employees.
Management agrees to follow proper procedures on auxiliary assistance
in connection with workload.
By letter to the agency dated March 25, 2005, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that the agency breached provision 4 when on March 21 and 22,
2005, supervisors insulted him, yelled at him, and directed him to leave
the workroom floor. Complainant maintained that the actions created an
unsafe and hostile work environment.
In its April 18, 2005 FAD, the agency concluded that it did not
breach the agreement. The FAD determined that complainant engaged in
inappropriate behavior by threatening a visitor on the workroom floor.
The FAD agreed with management that it was necessary to remove complainant
from the workroom floor to prevent an altercation and potential legal
repercussions.
On appeal, complainant also maintains that the Officer-in-Charge further
breached provision 4 by stating that complainant threatened a visitor
to the office and suffers from a mental illness.
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).
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, the settlement agreement will be set aside for
lack of consideration. See MacNair v. U.S. Postal Service, EEOC Appeal
No. 01964653 (July 1, 1997); Juhola v. Department of the Army, EEOC
Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department of
Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
In the instant case, complainant alleges that the agency breached
provision 4 when agency supervisors yelled at him and told him to leave
the workroom floor. Complainant also maintains that the provision was
breached when an agency official stated that complainant threatened a
visitor to the office and suffered from mental illness. Provision 4
provides that management will treat complainant fairly and similarly
to other employees. We find that the term �fairly� is too vague to
be enforced. See Johnson v. United States Postal Service, Appeal
No. 01A21576 (June 17, 2003)(ethereal provisions regarding fair and
respectful treatment of employees are too vague to allow a determination
as to whether the agency has complied with such an agreement). We also
find that by agreeing to treat complainant fairly and similarly to other
employees, the agency was merely agreeing to provide complainant nothing
more than that which he was already entitled to receive as an employee.
Accordingly, we find that provision 4 is void and unenforceable.
Likewise, provision 5 is void for lack of consideration because management
was already obligated to follow proper procedures on auxiliary assistance
apart from the settlement agreement. However, we find that because the
agency incurred legal detriment in provisions 1 and 3,we find that the
entire settlement agreement is not invalid but rather reformed without
provisions 4 and 5.
We further note that matters contained in complainant's breach
claim arguably also allege that he was subjected to further acts of
discrimination. EEO Regulations provide that allegations that subsequent
acts of discrimination violate a settlement agreement shall be processed
as separate complaints, not as breach claims. 29 C.F.R. � 1614.504(c).
Therefore, we find that if complainant has not already done so, he should
contact an EEO counselor to pursue these matters within 45 days after
the date this decision becomes final.
Accordingly, the Commission AFFIRMS the agency's final decision for the
reasons set forth in this decision.
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 (S0900)
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 (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
_September 29, 2005_____________
Date