____________________, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 12, 2003
01A33928_r (E.E.O.C. Dec. 12, 2003)

01A33928_r

12-12-2003

____________________, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


____________________ 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