0120102320
09-16-2010
Laura Kassem, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Laura Kassem,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102320
Agency No. CHI100065SSA
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated April 5, 2010, finding that it was in compliance with the terms of the December 29, 2009 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 (agreement) provided, in pertinent part, that:
(1) Within the next year following the signing of this agreement, [Complainant] will be seriously considered for any vacancy she puts in for, provided she make[s] the [Best Qualified] BQ list.
(2) Within 45 days of the Regional Commissioner signing this agreement, [Complainant's] supervisor will conduct a re-review of her Oct. 30/Nov. 4, 2009, appraisal. If a change is warranted, that change will be approved by the District Manager.
By letter to the Agency dated February 24, 2010, Complainant alleged that the Agency was in breach of the agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that her manager (M) "has made it clear . . . that he has no intention of helping me move up in my career." Complainant indicated that M told her he would not provide a favorable reference for her, and told her that she had no interpersonal skills. In addition, Complainant said, M told her that she needed to obtain permission from management before sending any emails to the staff. Complainant next maintained that the Agency did not conduct a review of her appraisal and that a February 5, 2010 claim by her supervisor (S) that the review had been conducted was "a complete fabrication." Finally, Complainant said that if her allegations were insufficient to reopen her complaint, she wished to initiate a new complaint of discrimination based on reprisal regarding management actions following the date of the agreement.
In its April 5, 2010 letter of determination, the Agency concluded there was no breach of the agreement. With regards to Complainant's allegations about clause 1 of the agreement, the Agency noted that Complainant had indicated she had only applied for one position since the signing of the agreement and that her nonselection for a single position was insufficient to show that management failed to adhere to the agreement. The Agency further noted that the agreement does not require that M help Complainant move up in her career and that his alleged failure to do so therefore does not constitute a breach. With regards to the allegations about clause 2, the Agency contends that S did conduct a review of Complainant's appraisal and that Complainant is mistaken in believing that the agreement required that Complainant participate in the review process.
On appeal, Complainant raises new allegations of discrimination and reprisal and states that she has filed a new EEO complaint that is currently in the formal complaint phase. The Agency essentially reiterates the arguments it made in the letter of determination.
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 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. See Collins v. United States Postal Service, EEOC Request No. 05900082 (April 26, 1990) (a settlement agreement that was not based upon adequate consideration was unenforceable).
In the instant case, pursuant to the agreement, the Agency agreed in clause 1 that Complainant would be seriously considered for any vacancy she applied for, provided she make the BQ list. Complainant, in turn, agreed to withdraw her EEO complaint. However, any applicant who makes the BQ list should be seriously considered for any vacancy they apply for. We find that in clause 1, the Agency, in merely agreeing to treat complainant in accordance with existing statutes and regulations, provided Complainant nothing more than that to which she was entitled as an employee, and accordingly, she received no consideration for her agreement to withdraw her complaint. Accordingly clause 1 is stricken from the agreement.
With regard to clause 2, Complainant's breach allegation is unclear. Complainant states in her letter alleging breach that "there was no review conducted with me as we had discussed in the mediation." The Agency interpreted this to mean that Complainant is arguing that she should have been present during the review. To the extent that this is indeed Complainant's argument, the Agency noted that the agreement makes no mention of Complainant being present during the review and we agree with the Agency in this regard. Complainant also states that the review conducted by S "was a complete fabrication." The record contains a copy of the February 5, 2010 memorandum from S stating that she had conducted a review of Complainant's appraisal and saw no need to change the appraisal. Complainant has provided no evidence to show that S's review was a "fabrication." Accordingly we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency breached the agreement. Accordingly, we AFFIRM the Agency's letter of determination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 77960, Washington, DC 20013. 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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 16, 2010
__________________
Date
2
0120102320
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102320