0120122057forweb
05-15-2013
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122057
Agency No. 4K-210-0075-11
DECISION
Upon review, the Commission finds that the Agency improperly determined that it did not breach a settlement agreement that the parties entered into resolving Complainant's complaint. See 29 C.F.R. � 1614.504. For the following reasons, we REVERSE the Agency's determination not to reinstate Complainant's complaint.
BACKGROUND
On October 26, 2011, the parties entered into a settlement agreement resolving the complaint. The settlement agreement provided, in pertinent part, that:
1. Counselee was turned down for an PSE position at her former office.
2. Management recognizes her ability and is willing to recommend her for a position in Chestertown as an RCA or support an application for a position in Rock Hall as an PSE if a job becomes available.
3. Counselee desires an PSE position in Rock Hall and will make an application for the position if and when it becomes available, and is willing to apply for the RCA job in Chestertown.
4. In order for an agreement to consummate a position as an RCA must become open which should be one week from today's date.
5. Counselee must comply with all application requirements for the RCA positions in order for this agreement to be enforced for the RCA position recommendation.
6. Nothing in the EEO fact finding filing shall be part of the Counselee employment record.
Thereafter, Complainant claimed that the Agency did not comply with the settlement agreement. Specifically, Complainant indicated that neither an RCA position nor an PSE position was made available for her. The Agency responded that it did not breach the settlement agreement. The Agency stated that there had been no job postings for an RCA in Chestertown or an PSE in Rock Hall.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
Provision 4 of the agreement stated in order for the agreement to "consummate", a position as an RCA must become open. Thus, there was never an agreement with consideration at the time the agreement was signed, because by its very terms the agreement was not agreed upon until some action happened in the future. Even if such an agreement were valid, both parties state on appeal that no RCA position in Chestertown has ever come open after the agreement was signed. Therefore, as set forth by the requirement in provision 4, there is no agreement. Complainant received no consideration. Therefore, we find that the settlement agreement is void. We shall order the Agency to reinstate Complainant's settled claims for further processing from the point processing ceased.
To the extent that Complainant is alleging that a subsequent act of discrimination violated the settlement agreement, she should contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105 so that her claim of discrimination may be processed as a separate complaint of discrimination pursuant to �1614.106. See 29 C.F.R. � 1614.504(c).
CONCLUSION
Accordingly, we REVERSE the Agency's decision and REMAND the matter to the Agency to reinstate Complainant's settled EEO matter from the point where processing had ceased.
ORDER
The Agency shall reinstate Complainant's settled EEO matter from the point processing ceased, in accordance with 29 C.F.R. Part 1614. The Agency shall acknowledge to Complainant that it has reinstated processing of the settled EEO matter within 30 days of the date this decision becomes final. A copy of the Agency's letter to Complainant resuming processing of the settled EEO matter shall be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
5/15/13
__________________
Date
2
0120122057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122057