01A04907_r
04-17-2002
Brenda K. Smith, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Brenda K. Smith v. Department of the Navy
01A04907
April 17, 2002
.
Brenda K. Smith,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04907
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 6, 2000, finding that it was in
compliance with the terms of the April 4, 1994 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
ACTIVITY COMMITMENT: The Commander Naval Base agrees to offer the
complainant the following:
to comply with medical recommendations pertaining to the complainant's
physical disability (hand injury) in accordance with Title I of the
Americans with Disabilities Act which explains that:
discrimination is prohibited against any qualified individual with
a disability in regard to all terms, conditions and privileges of
employment;
the qualified individual with a disability is defined as an individual
who satisfies the requisite skill, experience, education, and other
job-related requirements of the employment position that the individual
holds, and who with or without reasonable accommodation, can perform
the essential functions (job tasks that are fundamental) to the position.
to display the appropriate information concerning the Federal Sector
Complaint Processing Under 29 CFR Part 1614 which explains the Complaint
Process and gives the point of contact for information pertaining to
said Acts.
the Commander Naval Base, Norfolk acknowledges its obligation under
Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. section
2000e-16, not to take reprisal against the complainant for her filing
a complaint.
By letter to the agency dated June 2, 2000, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency required complainant to shoot more rounds at
a shooting range session (pistol and shotgun ranges) than her doctor's
medical restrictions permitted.
In its July 6, 2000 decision, the agency concluded that complainant
did not advise the range master "that she could not fire the shotgun
ranges during the same session that she shot a pistol range." The agency
also found that complainant's most recent medical documentation (1997)
did not include a restriction against complainant's firing a shotgun.
Nudum pactum
The Commission has stated the following concerning the issue of
consideration: Generally the adequacy or fairness of the consideration
in a settlement agreement is not at issue, as long 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. MacNair v. United States 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, pursuant to the settlement agreement, the agency
agreed that it would abide by and promulgate the anti-discrimination laws
the agency is already required to uphold. Complainant, in turn, agreed
to withdraw her EEO discrimination claim. 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 EEO claim. Based on
the foregoing, we find that the settlement agreement is unenforceable;
thus, the agency should reinstate complainant's EEO matter for further
processing from the point processing ceased.
The agency's final decision is VACATED and we REMAND the matter to
the agency for further processing at the point where processing of the
settled matter previously ceased.
ORDER
The agency shall reinstate the settled matter and resume processing the
matter from the point processing ceased pursuant to 29 C.F.R. Part 1614.
The agency shall, within 30 days of the date this decision becomes final,
notify complainant that it has reinstated the settled matter. A copy
of the letter to complainant must 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
April 17, 2002
__________________
Date