01a43029
10-07-2004
Edwin Roman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edwin Roman v. United States Postal Service
01A43029
October 7, 2004
.
Edwin Roman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43029
Agency No. 4A-006-0026-03
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated March 1, 2004, finding that it was in compliance with
the terms of the March 14, 2003 settlement agreement into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The March 14, 2003 settlement agreement provided, in pertinent part, that:
(1) Management official [A] agrees that the Office of Injury Compensation
will �provide�<1> any assistance related to the counselee [complainant]
regarding his cases of injury compensation
(2) That Labor Relations will review the settlement of 1998 to determine
the hours that have not been [paid] to date of the agreement.
In response to complainant's allegation of breach, the agency issued
a final decision finding no breach. Regarding provision (1), the
agency found that the Injury Compensation Specialist had assisted
complainant �on numerous occasions when [complainant] called the office
with inquiries....� Regarding provision (2), the agency determined that
complainant had not provided requested information for a back pay package,
and provides a review of various events that preceded the execution of
the instant agreement, as follows: on August 15, 2000, a back pay package
was sent to complainant; the Labor Relations Manager asked complainant
to complete a Form 8038, �Employee Statement to Recover Back Pay,�
and sign a Form 8039, �Back Bay Decision / Settlement Worksheet;� the
Labor Relations Manager stated that he never received a response from
complainant; on November 24, 2000, a Form 8039 was faxed to complainant
for review and signature; the Labor Relations Manager stated that the back
pay package was thereafter submitted to the Finance Branch for payment,
but that it was returned as incomplete; the package purportedly lacked
a properly signed and executed Form 8039; the Labor Relations Manager
stated that it was complainant's responsibility to provide that exact
amount of workers' compensation that he received each month during
the back pay period; the agency stated that requests were sent to
complainant, on April 12, 2001, May 4, 2001, and September 2, 2003,
to obtain the missing information; and complainant was informed that if
he failed to comply, his back pay would not be processed. Therefore,
the agency concluded that the settlement was not breached.
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).
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 & Human Service, EEOC Request No. 05910888 (March 11, 1992)).
In the instant case, provision (1) merely requires the agency to provide
complainant with �assistance� regarding his injury compensation cases.
We find that the agency is not providing complainant with anything more
than that to which he is entitled as an employee. Further, we find the
provision is too vague to be enforced.
In provision (2), the agency's affirmative obligation is to simply review
a prior settlement agreement to determine whether certain hours that
were the subject of that agreement have been paid. The Commission finds
that the agency is simply agreeing to actions that it was required to
undertake in an earlier agreement. Therefore, we find that the entire
March 1, 2004 settlement agreement is void for lack of consideration.
The agency is ordered to process the underlying EEO complaint from the
point where processing ceased.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint 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 underlying
EEO 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
October 7, 2004
__________________
Date
1The agency decision quotes the agreement as including the word �provide�.
However, the Commission is unable to determine what precise word is used,
due to an inability to discern this term in the handwritten agreement.