01A32830_r
04-08-2004
Dorothy D. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dorothy D. Jones v. United States Postal Service
01A32830
April 8, 2004
.
Dorothy D. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32830
Agency No. 1-H-331-0037-02<1>
DECISION
Complainant filed a timely appeal with this Commission from a final
determination by the agency dated March 12, 2003, finding that it was
in compliance with the terms of the May 20, 2002 settlement agreement
into which the parties entered. The settlement agreement stated, in
pertinent part:
[Management] agrees to discuss with [a Labor Relations Specialist] to
open a dialogue with [the APWU President] the issue of .030 abolishment
(bid) & excessing by section & closed bidding.
In an investigative affidavit dated January 21, 2003, complainant stated
that the agency breached the May 20, 2002 settlement agreement. When
asked what specifically was breached in the agreement, complainant stated:
What was breached was the agreement made with management and the APWU to
reopen the language of the bid abolishment and (3/5/03), and to have
in-house bidding in P/L 323 / Operation 030, by seniority, and not
by juniority.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency. Eggleston v. Department
of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990).
As such, they must meet certain requirements, including an exchange of
benefits known as consideration. The Commission is not concerned with the
adequacy or fairness of consideration in a settlement agreement as long as
some legal detriment is incurred as part of the bargain. When one of the
contracting parties, however, incurs no legal detriment, the settlement
agreement will be set aside due to the lack of consideration. Terracina
v. Department of Health and Human Services, EEOC Request No. 05910888
(March 11, 1992). In this case, a mere discussion between management
and the union does not constitute consideration for complainant.
Zyne v. United States Postal Service, EEOC Appeal No. 01A32606 (February
10, 2004). Therefore, we find the agreement void, and we shall order the
agency to reinstate the settled matter from the point processing ceased.
Accordingly, the agency's decision finding no breach of the settlement
agreement dated May 20, 2002 is VACATED. The matter is REMANDED to the
agency for further processing in accordance with the ORDER herein.
ORDER
The agency shall reinstate the settled matter and resume processing
the matter from the point processing previously ceased pursuant to 29
C.F.R. Part 1614. The agency shall, within 30 days of the date this
decision becomes final, notify complainant that it has reinstated the
settled matter. A copy of the letter to complainant informing him of
the reinstatement of the settled matter must be sent to the Compliance
Officer referenced herein.
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
April 8, 2004
__________________
Date
1In its final determination, the agency
misidentified the complaint as Case No. 1-H-330-0463-02. However,
in correspondence with the Commission dated May 6, 2003, the agency
notified that Commission that the correct agency case number for this
case is 1-H-331-0037-02, the number referenced on the May 20, 2002
settlement agreement.