01a54532
11-30-2005
Jack C. Loesch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jack C. Loesch v. United States Postal Service
01A54532
November 30, 2005
.
Jack C. Loesch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54532
Agency No. 4A-088-0012-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 26, 2005, finding that it was in
compliance with the terms of the January 13, 2004 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 settlement agreement provided, in its entirety, that:
1) The parties agree to treat each other with dignity, mutual respect
and professionalism when relating and communicating with each other both
in substance and style. The parties understand that this agreement is a
reiteration and reaffirmation of the existing statutes and regulations of
the USPS [agency] and the parties enter into this agreement as a direct
result of the discussion that took place in the mediation session. 2)
Management reiterates its open door policy and encourages Mr. Jack Loesch
[complainant] to avail himself of the opportunity should he have any
concerns so that management can deal with those concerns appropriately,
discreetly and in a timely manner.
By letter to the agency dated April 12, 2005, complainant indicated that
he wants to reinstate his EEO complaint because his supervisor continues
to berate him. Specifically, complainant asserts that his supervisor �is
out of control. He constantly screams at me, insults me, threatens me,
and discusses personal matters in regards to me in front of my peers on
the workroom floor.� Before reaching the current settlement at issue,
complainant had requested pre-complaint information and subsequently
submitted a pre-complaint form, alleging that the agency discriminated
against him based on age (53) and physical disability (carpal tunnel
syndrome) when his supervisor pulled him into the office, verbally
berated and issued him a Letter of Warning.
In a final decision dated May 26, 2005, the agency concluded that it has
fully complied with the settlement agreement. The agency maintained
that complainant's supervisor had denied complainant's allegations, and
on the contrary, complainant has displayed inappropriate behaviors on
the workroom floor. Specifically, complainant's supervisor asserted that
complainant disrupts the workroom by talking to his peers and delivering
speeches. Further, he asserted that complainant's co-workers have
complained that complainant is telling them not to do their jobs and is
making negative comments about the agency. The agency concluded that any
noncompliance is attributable to complainant's �act or conduct� in that
he has failed to demonstrate appropriate behavior on the workroom floor.
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 adequacy or fairness of consideration in an agreement usually is not
at issue, so long as the parties incurred some legal detriment. When
a party incurs no legal detriment, the settlement agreement lacks
consideration, and is void. See Terracina v. Department of Health and
Human Services, EEOC Request No. 05910888 (Mar. 11, 1992). To incur a
legal detriment, the parties must commit themselves to do something
they were not already obligated to do. See Morita v. Department of
the Air Force, EEOC Request No. 05960450 (December 12, 1997). In the
instant matter, both complainant and the agency agreed to treat each
other with dignity, mutual respect and professionalism when relating and
communicating with each other both in substance and style. Both parties
further agreed that this agreement is a reiteration and reaffirmation
of the existing statutes and regulations of the agency, and management
reiterated its open door policy and encouraged complainant to avail
himself should he have any concerns.
Looking to the plain meaning of the agreement, we conclude that the
agency agreed to do nothing in exchange for complainant's withdrawal of
his EEO complaint, and thus, the agency incurred no legal obligation
by signing the agreement. Under these circumstances, the Commission
finds that the agreement is void and, pursuant to 29 C.F.R. � 1614.504,
the agency should reinstate complainant's complaint from the point that
processing ceased.
Accordingly, the agency's decision is vacated and the complaint is
remanded for reinstatement from the point processing ceased.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant' s request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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
November 30, 2005
__________________
Date