0120090822
04-01-2009
Cynthia Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cynthia Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090822
Agency No. 4H-330-0283-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated November 19, 2008, finding that it was in
compliance with the terms of an August 13, 2008 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The August 13, 2008 settlement agreement provided that:
Both parties agree that they will work toward and make every effort for
better communication. Management of the USPS will address [Complainant]
as all other employees in a professional manner. [Complainant] will not
face retaliation for filing this EEO complaint. A copy of the EEO file
and Settlement will be held in accordance with the mandates of the EEOC.
By letter to the agency, dated September 14, 2008, complainant alleged
breach. Specifically, complainant alleged that on September 10, 2008,
her name was called out over the public address system, and she was asked
to report to the office concerning her mileage for the day. Complainant
stated that after her supervisor (S1) gave her a document to fill out
her mileage and submit to the Acting Supervisor (AS), she returned to
her office and "within 5 minutes [S1] appeared, saying I need to see
you in my office. Very strongly, [S1] said 'What did you say? What did
you say? Did you threaten him? What does 'reap you sow' mean? What did
you say?" concerning AS. Complainant stated that she repeatedly told S1
that she did not say anything to AS. Complainant stated that S1 then
called AS to report to the office, and AS "then said, 'You didn't just
threaten me and my children? You didn't just say to me reap and sow?'"
Complainant stated that after she denied saying anything to AS, S1 called
her a "liar."
In its November 19, 2008 final decision, the agency found no breach.
The agency stated that according to S1, he learned that complainant and
a few other carriers did not properly scan their mileage for September 9,
2008. S1 stated that he addressed complainant and the other carriers and
asked them to get the ending mileage so he could fix the mileage report.
S1 stated that the other carriers submitted their mileage, but that
complainant did not do so. S1 stated that he went to complainant's route
and asked her why she did not provide him the requested information.
S1 stated that after complainant claimed that there was no clerk
in the cage so she could not get the key for the vehicle to get the
mileage, he immediately arranged for a clerk to give complainant a key.
S1 stated that when complainant submitted her mileage, he asked her for
both the time she departed and returned to the office. S1 stated that
at that point, complainant rolled her eyes and said in a nasty manner
"you can go get it from my timecard." S1 stated that he felt compelled
to remind complainant of the instant agreement to address each other in
a professional manner to which complainant responded "whatever."
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).
The plain meaning rule, however, loses its relevance when a settlement
agreement lacks adequate consideration because such agreements are
unenforceable. See Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990) (a settlement agreement that was not based
upon adequate consideration was unenforceable). 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 settlement agreement will be set aside for lack of consideration.
See 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, the parties agreed to ensure that they would work
toward and make every effort for better communication, and that the
agency will address complainant "as all other employees in a professional
manner." The agency also agreed to ensure that complainant "will not
face retaliation for filing this EEO complaint." We find that, only
one party, complainant incurred a legal detriment by withdrawing her
formal EEO complaint. The agency, merely agreeing to treat complainant
in accordance with existing policies and procedures, provided complainant
nothing more than that to which she was entitled as an employee, so she
received no consideration with respect to the settlement agreement.
Based on the foregoing, we find that the settlement agreement is
unenforceable and is void for lack of consideration. Therefore, we find
that complainant's original complaint shall be reinstated.
Accordingly, the Commission VACATES the agency's final decision. This
matter is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ordered to process the underlying complaint (Agency
No. 4H-330-0283-08) from the point where processing ceased. The agency
shall acknowledge to complainant that it has reinstated and resumed
processing of complainant's underlying complaint.
A copy of the agency letter of acknowledgement must be sent to the
Compliance Officer as referenced below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
April 1, 2009
__________________
Date
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0120090822
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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