Gary Walters, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01a45165 (E.E.O.C. Nov. 24, 2004)

01a45165

11-24-2004

Gary Walters, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gary Walters v. United States Postal Service

01A45165

November 24, 2004

.

Gary Walters,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45165

Agency No. 1E-501-0003-04

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated July 2, 2004, finding that

it was in compliance with the terms of a March 19, 2004 settlement

agreement. See 29 C.F.R. Sec. 1614.402; 29 C.F.R. Sec. 1614.504(b); and

29 C.F.R. Sec. 1614.405. The agreement specified the manner in which

complainant and a manager were to interact in the workplace, as follows:

1. [Complainant] and [manager] discussed a number of situations.

They listened to each other respectfully and agreed to move forward

together to work toward increased respect and a positive work environment.

2. [Manager] will be aware of what workers are doing and [manager]

is committed to equal treatment for all. Discipline will be given as

is needed to insure equal treatment.

3. [Complainant] and [manager] will communicate in a respectful manner

and this means speaking in a normal tone of voice and no yelling,

raised voices, etc. [complainant] will make an effort to give his

concerns and/or opinions in a respectful way and [manager] will listen to

[complainant] and not ask him to stop complaining. Both [manager] and

[complainant] may ask for a private talk off the floor if they think it

will be helpful.

4. [Manager] and [complainant] agree that handling the mail is the top

priority and they believe that the mail handlers and supervisors need to

work together as a team. Both [complainant] and [manager] understand

this new plan will take some time to implement. It is important to

begin making some changes to improve the situation.

The Commission determines 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 settlement agreement does not require the

agency to incur any legal detriment at all. The vaporous terms of the

agreement requiring the parties, �to work toward increased respect and a

positive work environment� impose no particular obligation on the agency.

The agency is already required by law not to discriminate or retaliate

against complainant. Thus, its commitment to �equal treatment for all�

imposes no additional legal detriment. For this reason, we find that

complainant received no consideration for withdrawing his complaint and

we find that 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 underlying

complaint that was resolved pursuant to the instant settlement agreement,

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 acknowledgement 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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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

November 24, 2004

__________________

Date