0120080633
05-07-2008
Josephine Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Josephine Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080633
Agency No. 1J603001707
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 17, 2007, finding that it was
in compliance with the terms of the April 30, 20071 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 pertinent part, that:
(1) complainant will be provided training for the Express Mail Clerk
position within 60 days; and
(2) complainant will be given suitable opportunity to be utilized
when deemed necessary within the Express Mail Unit.
According to the FAD, on August 9, 20072, complainant alleged that the
agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to permit her to work in the Express Mail
Unit on weekends during the period of her training, and further denied
her opportunities to work in the Express Mail Unit on other occasions
as well.
In its October 17, 2007 FAD, the agency concluded that is had not breached
the agreement because complainant was provided with training.
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).
In the instant case, we note that the agency has not addressed
complainant's allegation that she was denied opportunities to work in the
Express Mail Unit. Instead, the FAD addresses the issue of training,
which is not what complainant was addressing in her breach allegation.
Because the agency has failed to address complainant's breach allegation,
we find it necessary to reinstate complainant's underlying complaint.
We further note that the second clause of the agreement, addressing
providing complainant with opportunities to work in the Express Mail Unit,
does not provide sufficient consideration to constitute a valid contract.
Generally, as long as some legal detriment is incurred by each party
as part of the bargain, the adequacy or fairness of the consideration
in a settlement agreement is not at issue. 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, the agency agreed that complainant "will be
given suitable opportunity to be utilized when deemed necessary within
the Express Mail Unit." The agency does not agree to let complainant
work in the Express Mail Unit once she satisfies the agreement's terms,
but only that complainant will be given "suitable opportunity . . . when
deemed necessary." Thus even if complainant demonstrates to the agency's
satisfaction that she has met the agreement's terms, the agency is
under no contractual duty to do anything. The agency's consideration,
therefore, is illusory.
Accordingly, the final agency decision finding no settlement breach
is vacated. 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 herein.
ORDER
The agency is ORDERED to resume processing of complainant's complaint from
the point processing ceased within thirty (30) calendar days of the date
this decision becomes final. The agency shall acknowledge to complainant
that it has reinstated and resumed processing of his 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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
May 7, 2008
__________________
Date
1 We note that the FAD gives two dates for the agreement, May 17, 2006,
and April 30, 2007.
2 Complainant's notification letter is undated, and the agency did not
date-stamp it upon receipt.
??
??
??
??
2
0120080633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120080633