01974119
02-24-1999
Harvey H. Hayashida, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Harvey H. Hayashida v. United States Postal Service
01974119
February 24, 1999
Harvey H. Hayashida, )
Appellant, )
)
v. ) Appeal No. 01974119
) Agency No. 5E-1128-91
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's decision denying his request to
reinstate his complaint. See 29 C.F.R. �1614.402, 504(b); EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Appellant filed a formal EEO complaint on September 13, 1991, which was
subsequently resolved by a settlement agreement entered into on March
25, 1992. The agreement stated in relevant part that:
1. The complainant whenever supervised by the Supervisor, Delivery and
Collections, will be treated in a fair, equal and professional manner.
The Supervisor, Delivery and Collections will adhere to all provisions
of the National Agreement, Local Memorandum of Understanding, and other
applicable postal regulations.
2. No reprisals will be taken against the complainant for having sought
the protections afforded under Title VII and the Federal Sector EEO
Complaints process.
On January 9, 1997, appellant filed a formal EEO complaint that contained
an allegation stating that the Supervisor, Delivery and Collections,
violated the provision of the aforementioned settlement agreement which
provides that he will be treated equally, fairly, with dignity and
respect and with professionalism. By letter dated January 28, 1997, the
agency requested that appellant provide more specific information with
regard to the alleged violation of the settlement agreement. In response
dated January 30, 1997, appellant stated that the agency breached the
terms of the settlement agreement by committing reprisal against him
with regard to his request for a Safety Day Annual Leave Award and by
disciplining him for violation of an agency policy. Appellant indicated
that he had already filed separate complaints with regard to each issue.
Appellant requested that his prior complaint (Agency No. 5E-1128-91)
be reinstated. By letter dated March 26, 1997, appellant reiterated
his contention that the agency violated the settlement agreement on the
issue of his request for a Safety Day Annual Leave Award.
In a final decision dated April 3, 1997, the agency stated that
appellant's allegation concerning the Safety Day Annual Leave Award
is being processed as a separate complaint. The agency noted that
allegations that subsequent acts of discrimination violate a settlement
agreement shall be processed as separate complaints. The agency stated
that Agency No. 5E-1128-91 would not be reopened. On appeal, appellant
contends with regard to the Safety Day Annual Leave Award, that the
Supervisor, Delivery and Collections, refused to provide him with a
carbon copy of his PS Form 3971, Request for Notification of Absence.
Appellant claims that this action constituted reprisal.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall
resolve the matter and respond to the complainant, in writing. If the
agency has not responded to the complainant, in writing, or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
35 days after he or she has served the agency with the allegations of
noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
Settlement agreements are contracts between appellant and the agency and
it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its meaning
is determined from the four corners of the instrument without resort to
extrinsic evidence. Smith v. Defense Logistics Agency, EEOC Appeal No.
01913570 (December 2, 1991). Moreover, other standard contractual
requirements such as the necessity of consideration, apply in this
context. Collins v. United States Postal Service, EEOC Request No.
05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC Request
No. 05900744 (July 20, 1990); Roberts v. United States Postal Service,
EEOC Appeal No. 01842193 (May 9, 1985).
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.
In the instant case, pursuant to the settlement agreement, the agency
agreed that appellant would be treated in a fair, equal and professional
manner. The agency also agreed that the Supervisor, Delivery and
Collections would adhere to all provisions of the National Agreement,
Local Memorandum of Understanding, and other applicable agency regulations.
Additionally, the settlement agreement provided that no reprisals would be
taken against appellant for having utilized the EEO process. Appellant, in
turn, agreed to withdraw his EEO complaint. We find that the agency, in
merely agreeing to treat appellant in accordance with existing statutes and
regulations, provided appellant with nothing more than that to which he was
entitled as an employee, and accordingly, he received no consideration for
his agreement to withdraw his complaint. Based on the foregoing, we find
that the settlement agreement is unenforceable; thus, in accordance with
regulations, the agency should reinstate appellant's complaint for further
processing from the point processing ceased.
ORDER
The agency is ORDERED to resume processing of appellant's complaint from
the point processing ceased. The agency shall acknowledge to appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to appellant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations