01a51334
09-26-2005
Kathleen L. Hartman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathleen L. Hartman v. United States Postal Service
01A51334
September 26, 2005
.
Kathleen L. Hartman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51334 Agency No. 1H-339-0009-04
DECISION
The record reveals that on March 30, 2004, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided in pertinent part as follows:
[1] [Complainant] will seek medical advice as to whether her medical
condition is covered by FMLA or OWCP.
[2] Management will continue to investigate the situation regarding
the allegations of hostility and harassment. If the perpetrators are
discovered, then management will take appropriate action.
By letter dated September 29, 2004, complainant informed the agency
that it had breached the second provision of the settlement agreement.
According to complainant, on September 8, 2004,
harassment occurred and the perpetrator was known, yet no action was taken
by either her supervisor or the Acting Manager, Distribution Operations.
The record indicates that the alleged harassment involved an agency
official referring to complainant as a �fucking loser� while talking to
two of complainant's coworkers.
By decision dated October 26, 2004, the agency determined that it
had not breached the settlement agreement. The agency stated with
regard to the alleged harassment that it conducted a full and thorough
investigation of the alleged incident. The agency stated that it has
taken a number of steps to alleviate any issues concerning employee
bickering, alleged hostile environment, and harassment. The agency
stated that it has conducted group meetings with employees, sensitivity
training for employees, and has had a one on one session with complainant.
Thereafter, complainant filed the instant appeal.
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 action, 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.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
We find that the instant settlement 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. United
States 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)). Provision 1 of the settlement
agreement only required action by complainant and did not provide any
consideration from the agency to complainant. We find that provision
2 in the settlement agreement requiring that management to continue to
investigate the situation regarding the allegations of hostility and
harassment, and that if the perpetrators are discovered, then management
will take appropriate action, fails to confer on complainant any benefit
that she was not already entitled to under EEOC Regulations. Therefore,
we find that complainant received no consideration for withdrawing her
complaint and the settlement agreement is void. The Commission shall
order the agency to reinstate the settled matter.
The agency's decision finding that it did not breach the settlement
agreement is VACATED. This matter is hereby REMANDED to the agency for
further processing pursuant to the Order below.
ORDER
Within 30 days of the date this decision becomes final, the agency shall
resume processing the settled matter from the point where processing
ceased pursuant to Part 1614 Regulations. The agency shall, within 30
days of the date this decision becomes final, send a letter to complainant
informing her of the resumption of processing of the settled matter.
A copy of the agency's letter to complainant must be sent to the
Compliance Officer as referenced herein.
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
September 26, 2005
__________________
Date