0120102132
08-27-2010
Gabriel Inclan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Gabriel Inclan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120102132
Agency No. 4G-780-0058-10
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated March 22, 2010, finding that it was in compliance with the terms of a February 23, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
The February 3, 2010 settlement agreement provided that:
(1) The supervisor agrees to discuss discrepancies calmly at the Complainant's case and to respond only with "acceptable" or "unacceptable."
(2) The managers will suggest to her manager that: a. The supervisor will attend communication classes at the earliest opportunity. b. The supervisor will be transferred back to her normal duty station at the earliest opportunity [emphasis in the original].
(3) The manager and supervisor agree to attempt to maintain an atmosphere with employees which assures mutual respect for the employer and employee rights and responsibilities. They will particularly attempt to avoid a loud and argumentative manner.
By letter to the Agency dated March 9, 2010, Complainant alleged breach. Specifically, Complainant alleged that on March 2, 2010, his supervisor (S1) approached him at his case and informed him that he failed to complete his route in the allotted time frame; and that on March 8, 2010, S1 came to his case and questioned him on the previous day's events where she again notified him that his route was not overburdened. Complainant further alleged that S1 interrupted him several times and raised her voice at him. Furthermore, Complainant alleged that during the two incidents, S1 was clearly agitated because her demeanor and tone were aggressive and argumentative.
In its March 22, 2010 final decision, the Agency found no breach. The Agency determined that S1 stated that the settlement agreement was honored. The Agency noted that S1 stated that she simply asked Complainant to provide her with his reasons for going over his allotted time period. The Agency further noted that S1 stated that Complainant notified her that the reasons were due to full coverage in DPS mail, blocked boxes and overburdened route. S1 stated that she found Complainant's reasons were unacceptable because she was able to authenticate the truth, but nevertheless accepted Complainant's reasons concerning the blocked boxes because "I did not verify." The Agency noted that S1 stated that each of the verbal exchanges, S1 denied interrupting Complainant or raising her voice at him. Furthermore, the Agency noted that S1 stated that questioning employees on their late return time is a fundamental part of her job. In support of its assertions, the Agency submitted S1's declaration dated March 19, 2010.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
In the instant case, the agency officials merely agreed to abide by the Agency's rules and to be fair and equitable to Complainant by discussing Complainant's discrepancies calmly and responding only with "acceptable" or "unacceptable" answers; "suggesting" that a manager attend communication classes; and maintaining mutual respect atmosphere. Such provisions provide Complainant nothing more than that to which he was already entitled as an employee, so he received no consideration with respect to the settlement agreement. See Brown v. United States Postal Serv., Appeal No. 020090822 (April 1, 2009) (agency agreement to address Complainant "as all other employees in a professional manner" lacked consideration). Based on the foregoing, the settlement agreement is unenforceable and is void for lack of consideration. Therefore, the Commission finds that the Complainant's original complaint shall be reinstated. The events raised in support of Complainant's claim of breach should be included in the original complaint.
Accordingly, the Commission VACATES the Agency's final decision. The Commission hereby voids the settlement agreement and REMANDS this case so that the EEO complaint may be reinstated for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to resume the processing of the settled matter from the point processing cease pursuant to 29 C.F.R. Part 1614. Within thirty (30) days of the date this decision becomes final, the Agency shall notify Complainant in writing that it has reinstated his EEO complaint. The Agency must provide a copy of this notice to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 27, 2010
__________________
Date
2
0120102132
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102132