01A34100_r
10-09-2003
Ellen M. Gorzkowski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ellen M. Gorzkowski v. United States Postal Service
01A34100
October 9, 2003
.
Ellen M. Gorzkowski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34100
Agency No. 4C-170-0031-02
Hearing No. 170-A3-8283X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 26, 2003, finding that it was
in compliance with the terms of an April 30, 2003 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The April 30, 2003 settlement agreement provided that:
1. The issue of tardiness will be applied fairly to all employees.
2. All regulations will be applied equally to all employees.
By letter to the agency dated June 18, 2003, complainant alleged that
the agency breached the settlement agreement, and requested that her
complaint be reinstated. Specifically, complainant alleged that the
agency took no action against other employees' tardiness. Furthermore,
complainant claimed that the agency had punished her for her injury by
instructing her to work the afternoon shift, which was outside of her
medical restrictions.
In its June 26, 2003 FAD, the agency found no breach. The agency noted
that a Postmaster and a Supervisor Customer Services determined that a
co-worker (CW1), identified by complainant, was scheduled to work on his
non-scheduled day and was instructed to report to work when he could; and
that there was no need for CW1 to complete PS Form 3971. With respect to
a second co-worker (CW2) identified by complainant, the agency found that
the Postmaster and Supervisor determined that CW2 was late to work one
day; however, they stated that CW2 telephoned the agency 15 minutes before
her start time stating that she would be late due to car trouble. The
agency noted that a PS Form 3971 was completed for CW2's tardiness
and was awaiting her signature. With respect to complainant's claims
that she was instructed to work outside of her medical restrictions,
the agency determined that this issue was not raised in the complaint
nor was discussed during the settlement negotiations.
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 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. U.S. 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). Here, we find that the provision requiring the agency
to make sure that the �issue of tardiness will be applied fairly to all
employees,� as well as the remaining provision, which requires the
agency to make sure that �all regulations will be applied equally to
all employees,� do not require the agency to incur any legal detriment
at all. 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 her
complaint.
A copy of the agency's 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 9, 2003
__________________
Date