01A43822_r
09-08-2004
Eartha Bolen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eartha Bolen v. United States Postal Service
01A43822
September 8, 2004
.
Eartha Bolen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43822
Agency No. 1J-487-0001-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 25, 2004, finding that it was in
compliance with the terms of an August 14, 2002 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
Regarding the underlying complaint, the record reflects that complainant
filed a formal complaint on March 8, 2001, regarding her termination
from agency employment. On April 5, 2001, the agency issued a final
decision dismissing the underlying complaint on the grounds of untimely
EEO Counselor contact. On appeal, the Commission reversed the agency's
dismissal and remanded the complaint to the agency for further processing.
Bolen v. USPS, EEOC Appeal No. 01A13333 (August 24, 2001).
However, on August 14, 2002, complainant and the agency entered into
a settlement agreement, in resolution of the underlying complaint.
The settlement agreement provided, in pertinent part, that:
1. Counselee will file for disability retirement through OPM by
contacting [ a named agency official] at [telephone number] by August 28,
2002, and subsequently completing appropriate forms;
2. Counselee will contact OWCP [Office of Workers' Compensation Programs]
and speak to [a named OWCP] at [telephone number] to determine eligibility
for medical treatment of injuries by August 28, 2002; and
3. If disability retirement is not approved and/or OWCP does not
approve medical treatment, counselee has 30 days from time of such
notification to request, in writing that this case be reopened at the
point processing ceased.
By letter to complainant dated April 29, 2003, the agency made reference
to an undated letter complainant sent on April 28, 2003. The agency
indicated that it appeared that complainant was making reference to the
instant settlement agreement, and advised complainant to contact an EEO
Dispute Resolution Manager if she indeed was alleging breach.
The record, however, also contains a letter to the agency dated April
24, 2003. Therein, complainant alleged that she tried to contact the
named agency official identified in provision 1 of the instant settlement
agreement. Complainant further alleged that she spoke with the agency
official by phone on one occasion and that she "was suppose[d] to talk to
her to seek counseling for disability retirement." Complainant alleged
that she was not treated fairly.
The agency issued a FAD, on June 25, 2004, finding no breach.<1> The
agency determined that a review of the record showed that on November 3,
2001, complainant received disability retirement and medicare for her
work related condition from OWCP.
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 Commission acknowledges that the voluntary resolution of
discrimination complaints is favored under both Commission and public
policy and that settlement agreements will not lightly be set aside.
See e.g, Rogers v. General Electric Co., 781 F.2d 452 (5th Cir. 1986).
Therefore, a settlement agreement made in good faith and otherwise
valid will not be set aside simply because it appears that one of the
parties has made a poor bargain. If, however, the circumstances of a
case show equitable grounds for relief, a settlement agreement may be
set aside. See generally Ingram v. General Services Administration,
EEOC Request No. 05880565 (June 14, 1988) (settlement agreement
unenforceable where agency imposed a hiring freeze only two months after
agreeing to give appellant priority consideration for selections for a
twelve-month period). 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.
The Commission finds that the instant agreement is void for lack of
consideration. 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, we find that provisions 1 and 2, which require
complainant to contact a named agency official and a named OWCP official
concerning a disability retirement application and eligibility for
medical treatment for injuries, do not require the agency to incur any
legal detriment at all. Further, provision 3 requiring the agency to
reopen complainant's complaint from the point processing ceased if her
disability retirement and/or her medical treatment are not approved,
likewise does not require the agency to incur any legal detriment.
The agreement fails to confer on complainant any benefit that she was
not already entitled to as a matter of law. Therefore, we find that
complainant received no consideration for withdrawing her complaint and
the settlement agreement is void.
Accordingly, the agency's decision finding it did not breach the
settlement agreement is VACATED. The matter is REMANDED to the agency for
further processing in accordance with this decision and 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 acknowledgment 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
September 8, 2004
__________________
Date
1The Commission notes that the agency inadvertently identified the date
of the settlement agreement as August 9, 2003, instead of August 14, 2002