0120082870
09-19-2008
Carla J. Harnest, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carla J. Harnest,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082870
Agency No. 4K-200-0139-07
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated May 15, 2008, finding that it was in compliance with
the terms of the July 12, 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:
[The Manager of Operation Support] has agreed to address issues concerning
the behavior of [VW].
If there is any training, it is agreed that after the training is
finished, [complainant] will give an overview of the training to [D]
and [TF]. Expectations will be addressed either before and/or after
the training.
If [complainant] has a work related problem, she may consult with [TF]
or [D] to resolve the issue. Any discussions will be in private and
[complainant] will be given the time and opportunity to gather all
necessary information related to the issue in order to respond. It will
be a joint effort to resolve the issue. [T's] door is always open.
In February 2008, complainant contacted the EEO office alleging that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that her immediate supervisor informed her that she
needed to attend a meeting "right now" regarding the denial of her FMLA
request. Complainant felt the sudden meeting with three individuals,
including the FMLA Coordinator, was intimidating. Moreover, she felt
disadvantaged in that she did not have supporting documentation with
her and was told to be quiet. Complainant believed that the meeting
violated the last provision of the agreement, which provided for private
consultations and an opportunity to collect relevant information.
In its May 15, 2008 decision, the agency concluded that the settlement
was "null and void for lack of consideration." The agency reasoned that
the agreement "offered nothing of value and was merely conditioned upon
the existence of training and/or work related problems." Consequently,
the agency stated, complainant's pre-complaint1 would be reinstated from
the point processing ceased.
On appeal, complainant requests "that the entire settlement agreement
that was freely signed by all parties on July 12, 2007 be allowed to
continue to be to be in effect . . . ." Complainant notes that while
the agreement language specifically provides for the possibility that a
settlement term may violate the collective bargaining agreement, resulting
in a null and void agreement, she argues that the C.B.A. was not violated.
Therefore, argues complainant, the agency erred in finding the agreement
was void. The agency cannot declare that the settlement is void, asserts
complainant, simply to protect the manager who violated the agreement.
Complainant believes that the February 2008 meeting was the type of
incident that the settlement agreement was created to avoid: namely,
a meeting over work-related issues where complainant is not given an
opportunity to respond and collect relevant documentation.
In response, the agency reiterates the reasoning set forth in its
final decision. Additionally, the agency clarifies the issues to be
reinstated. The agency asks that the Commission affirm its decision
finding no breach.
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).
As noted above, the agency contends that the agreement lacks consideration
and is void. 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 agreement will be set aside for
lack of consideration. See MacNair v. United States Postal Service, EEOC
Appeal No. 01964032 (July 1, 1997); Juhola v. Department of the Army,
EEOC Appeal No. 01934032 (June 30, 1994) (citng Terracine v. Department of
Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
In the instant case, we find that there is adequate consideration.
For example, the agency is required to conduct private discussions with
complainant to address work related problems, and provide her with an
opportunity to gather and present relevant information. Also, when
there is training complainant shall give an overview of the training to
the cited management officials. These are actions that the complainant
is not otherwise entitled to, absent the agreement. Moreover, we find
that agency's purported inaction, and alleged breach, as support of
complainant's belief that a valid agreement was entered by the parties.
Consequently, we find that the agency erred in finding that the settlement
is void. Instead, we find that the agency has not established that it
has complied with the agreement as required.
EEOC regulations provide that the Commission may, in its discretion,
remedy a breach by either ordering the agency to reinstate the underlying
complaint for processing or, alternatively, to undertake specific
performance of the breached provision(s). See 29 C.F.R. 1614.504(c).
Here, in keeping with complainant's request, the agency is ordered to
specifically perform its obligations as set forth in the settlement
agreement.
CONCLUSION
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER
The agency is ordered to comply with the terms of the July 12, 2007
settlement agreement. Within fifteen (15) calendar days, the agency shall
notify complainant that the terms of the settlement agreement stand.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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 19, 2008
Date
1 The agency specified that only the issues "on the partial settlement
agreement", issues 1 and 2 and noted in the August 16, 2007 right to file
form, would be reinstated. Similarly, we note that the EEO Counselor's
Report explains that the mediation resolved issues 1 and 2, but issues
(4)-(6) were not resolved. The Commission, however, observes that the
settlement itself does not reflect this limitation.
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0120082870
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082870