01A33928_r
12-12-2003
____________________ v. United States Postal Service
01A33928
December 12, 2003
.
____________________,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33928
Agency Nos. 4J-481-0006-02 and 4J-481-0074-02
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated May 30, 2003, finding that it was in compliance with
the terms of the November 27, 2001 settlement agreement and a May 7,
2002 settlement agreement, into which the parties entered.
The November 27, 2001 settlement agreement provided, in pertinent part,
that:
Management will not retaliate in [any way] (schedule changes,
etc.) against [complainant] because of this claim or mediation.
(This does not prevent management from making changes for other
non-retaliatory, non-discriminatory reasons.)
The May 7, 2002 settlement agreement provided, in pertinent part, that:
[Complainant] will make an appointment to speak with [S1] about her
concerns about his perceptions of her and her job security. [S2] will tell
[S1] that [complainant] will be asking for this appointment.
Management will not retaliate in any way (schedule changes, etc.) against
[complainant] because of this claim or mediation. (This does not
prevent management from making changes for other non-retaliatory,
non-discriminatory reasons.)
By letter to the agency dated January 12, 2003, complainant alleged that
the agency was in breach of the settlement agreements, and requested
that the agency specifically implement them. Specifically, complainant
alleged that on December 19, 2002, she was given a new job offer with
schedule changes. Complainant feels the changes were in reprisal for
her prior EEO participation.
In its May 30, 2003 decision, the agency concluded that complainant's
schedule had been changed to accommodate staffing needs in the front
office where complainant works.
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).
As a preliminary matter, we find both settlement agreements are void for
lack of consideration. A valid contract must be based upon consideration
where some right, interest, profit, or benefit accrues to one party or
some forbearance, detriment, loss, or responsibility is given, suffered,
or undertaken by the other. Where the promisor receives no benefit and the
promisee suffers no detriment, the whole transaction is a nudum pactum.
See Collins v. United States Postal Service, EEOC Request No. 05900082
(Apr. 26, 1990) (a settlement agreement that was not based upon adequate
consideration was unenforceable).
In the instant case, pursuant to the settlement agreements of November
27, 2001 and May 7, 2002, the agency agreed that complainant would not
be subjected to reprisal for having participated in the EEO or mediation
process. The agency further agreed to assist complainant with making
an appointment with a supervisor, without agreeing that complainant
would actually meet with the supervisor. Complainant, in turn, agreed
to withdraw her EEO claim(s), in agency case numbers 4J-481-0074-02
and 4J-481-0006-02. The Commission finds that no consideration was
provided to complainant in either settlement agreement. We find that
the agency, in merely agreeing to treat complainant in accordance with
existing statutes and regulations, provided complainant nothing more
than that to which she was entitled as an employee, and accordingly, she
received no consideration for her agreement to withdraw her complaints.
Based on the foregoing, we find that the settlement agreements are
void and we shall order the agency to reinstate the settled matters for
further processing from the point processing ceased.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, she may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint
be reinstated for further processing. However, a complaint which
alleges reprisal or further discrimination in violation of a settlement
agreement's "no reprisal" clause, is to be processed as a separate
complaint and not as a breach of settlement. 29 C.F.R. � 1614.504(c).
We find complainant is entitled to have her reprisal claim (regarding
the December 19, 2002 incident) processed as a new EEO matter and we will
direct the agency accordingly. The date complainant notified the agency
of the alleged breach in which she alleged reprisal shall be deemed to
be the date of the initial EEO contact, unless she previously contacted
a counselor regarding these matters.
Accordingly, we VACATE the agency's determination that no breach of the
settlement agreements of November 27, 2001, and May 7, 2002 occurred.
We REMAND the settled matters (agency case numbers 4J-481-0006-02 and
4J-481-0074-02) to the agency, together with complainant's reprisal claim
as alleged in complainant's January 12, 2003 letter, to the agency for
processing as directed herein.
ORDER
The agency shall resume processing of the settled matters raised in
agency case numbers 4J-481-0006-02 and 4J-481-0074-02, from the point
where processing previously ceased. The agency shall, within 30 days of
the date this decision becomes final, acknowledge to complainant that
it has reinstated and resumed processing of the settled matters.
The agency shall process the remanded reprisal claim in accordance with
29 C.F.R. � 1614.105 et seq. The agency shall, within 30 days of the
date this decision becomes final, acknowledge to the complainant that
it has received the remanded reprisal claim and will process the claim
pursuant to 29 C.F.R. � 1614.105 et seq.
A copy of the letter acknowledging reinstatement of the settled
matters and a copy of the letter acknowledging receipt and commitment
to processing of the reprisal claim, shall be sent to the Compliance
Officer referenced herein.
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 12, 2003
__________________
Date