01A23979_r
11-19-2002
Dennis L. Mark, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Dennis L. Mark v. Department of the Air Force
01A23979
November 19, 2002
.
Dennis L. Mark,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23979
Agency No. AL900021164
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated August 9, 2002, finding no breach of a May 10,
2001 settlement agreement. The Commission accepts the appeal. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The May 10, 2001 settlement agreement provided that:
Currently, the complainant's first-level supervisor is [S]. Management
will adhere to all relevant law and regulation while exercising its
discretionary authority in assigning the complainant's future supervisors.
(2) [Agency management] will abide by all law, rule, and regulation
under which Brooks [Air Force Base] is governed with respect to future
hiring practices.
(3) [Agency management] will afford all employees training in a similar
manner.
By letter to the agency dated June 4, 2002, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
claims that he received an unfair rating on his performance appraisal. In
its final decision, the agency found that this claim did not fall
within the purview of the settlement agreement and found no breach.
The instant appeal followed.
In responding to complainant's appeal, in pertinent part, the agency
repeats the determination in its final decision. The agency also argues
that the Commission should forebear in exercising its discretion to
declare the settlement invalid for lack of consideration. The agency
avers that complainant is satisfied with the terms of the settlement
agreement, and that the agency incurred a legal detriment because it
is now �restricted� in assigning supervisors.
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 promisor receives
no benefit and the promisee 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).
Pursuant to the settlement agreement, the agency agreed that they would
abide by the applicable laws and regulations in assigning supervisors,
hiring, and training its employees. Complainant, in turn, agreed to
withdraw his complaint. We find that the agency, in merely agreeing to
treat complainant and its other employees in accordance with existing
laws and regulations, provided complainant nothing more than that to
which he was already entitled as an employee of the agency. Moreover,
notwithstanding the agency's argument to the contrary, we find that
provision 1 only requires the agency to exercise its discretion within
the confines of its �law and regulation� when assigning supervisors, such
that its poses no additional restriction upon the agency. Therefore,
we find that complainant received no consideration for his agreement
to withdraw his complaint.
Accordingly, based on the foregoing, we find that the settlement agreement
is invalid for lack of consideration, and we VACATE the agency final
decision and REMAND the case to the agency to reinstate complainant
underlying complaint for processing pursuant to 29 C.F.R. � 1614.504(c).
Furthermore, we also order the agency to consolidate the underlying
complaint with the unfair performance appraisal claim now raised by
complainant, and jointly process both matters.<1> See 29 C.F.R. �
1614.606. ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days of the date of this decision, the agency
is ordered to reinstate complainant's underlying complaint (agency
numbers AL900021164/BV1M01001) pursuant to 29 C.F.R. � 1614.504(c),
and consolidate it with complainant's newly raised claim regarding
an unfair performance appraisal for joint processing pursuant to 29
C.F.R. � 1614.606.
A copy of the agency's letter of acknowledgment to complainant regarding
this action 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
1Complainant's underlying complaint raises claims of non-selection for
a supervisory position, denial of training, and assignment of duties not
commensurate with his grade level, which occurred in temporal proximity
to the performance rating now raised by complainant, and also involves
the same management officials.