01A15417_r
11-19-2002
Denise M. Petty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Denise M. Petty v. United States Postal Service
01A15417
November 19, 2002
.
Denise M. Petty,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15417
Agency No. 4A070012300
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated August 22, 2001, finding that it was in
compliance with the terms of a February 29, 2000 settlement agreement.
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 that:
(1) The parties will maintain a workplace relationship characterized by
mutual respect and effective communication;
(2) The management official agrees to provide work opportunities as
prescribed by the national contract and postal policies and procedures.
By letters to the agency dated July 16, 2000 and August 30, 2000,
complainant alleged that the agency breached the settlement agreement,
and requested that the agency implement its terms. Specifically,
complainant alleged that the agency wrongly failed to grant her ample
overtime opportunities from February 29, 2000 until June 30, 2000.
In its December 18, 2001 final decision, the agency found no breach.
The agency used three employee overtime records examined by complainant
and concluded that while complainant received 9.5 hours of overtime
from September 29, 2000 until July 16, 2001, another light duty
employee received no overtime and another light duty employee received
40.7 hours. The agency disqualified a third employee referred to by
complainant from its comparison because it found that that employee was
not on light duty.
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 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).
However, in Baker v. Chicago Fire & Burglary Detection, Inc., 489
F.2d 953, 955 (7th Cir. 1973), the court held that 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
promissor receives no benefit and the promissee suffers no detriment,
the whole transaction is a nudum pactum. 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).
In the instant case, the agency agreed that it would engage complainant
with �mutual respect and effective communication� and provide work
opportunities according to the national contract and agency policies
and procedures. We find that the agency, in merely agreeing to
treat complainant in accordance with existing statutes, contracts and
regulations, provided complainant nothing more than that to which she
was entitled as an employee. Moreover, we have generally held that
provisions regarding treating employees with respect and dignity are
too vague to allow a determination as to whether the agency has complied
with such an agreement. See Bruns v. United States Postal Service, EEOC
Appeal No. 01965395 (June 24, 1997). Therefore, we find that complainant
received no consideration for her agreement to withdraw her complaint.
Accordingly, we find that the settlement agreement is unenforceable and
the agency's final decision is VACATED. This matter is REMANDED to the
agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to resume processing of complainant's complaint
from the point where processing ceased. The agency shall acknowledge to
complainant that it has reinstated and resumed processing of complainant's
complaint.
A copy of the agency letter of acknowledgement must be sent to the
Compliance Officer as referenced below.
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
November 19, 2002
__________________
Date