01A31711_r
05-15-2003
Richard Hanft, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard Hanft v. United States Postal Service
01A31711
May 15, 2003
.
Richard Hanft,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31711
Agency No. 4E-990-0012-01
Hearing No. 380-A1-8227X
DECISION
Complainant filed a timely appeal with this Commission regarding the
issue of whether the agency was in compliance with the terms of a May
21, 2002 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The May 21, 2002 settlement agreement provided, in pertinent part, that:
13(b) The Agency agrees that any future counseling of Complainant shall
be done in a manner that is in keeping with Agency policy to respect
the dignity of its employees.<1>
By letter to the agency dated November 14, 2002, complainant alleged
that the agency breached the settlement agreement, and requested that the
agency reinstate his complaint. Specifically, complainant alleged that
the agency breached provision 13(b) when the agency did not counsel him
regarding his disability retirement or provide the proper information
to the Office of Personnel Management (OPM). Complainant further
alleged that he was not counseled by the local agency on any retirement
proceedings and was not shown any respect or dignity.
Thereafter, complainant sent a letter dated December 16, 2002, to a
Commission Administrative Judge, who was assigned to hold a hearing
on the underlying complaint prior to its resolution pursuant to the
instant settlement agreement. Therein, complainant stated that he had
alleged settlement breach with the agency but had received no response.
The Administrative Judge responded by advising complainant to file an
appeal with the Commission following the expiration of thirty-five days
from the date that he alleged settlement breach with the agency.
In a February 10, 2003 letter complainant, the agency stated that it
did not breach the settlement agreement. Specifically the agency
found that there is nothing in the settlement agreement concerning
complainant's retirement. The agency stated that according to the
Spokane District Personnel office, there was correspondence between the
office and complainant until his retirement effective date. The agency
noted complainant's concerns about receiving no response regarding his
retirement from the local office but stated that this is not part of
the retirement counseling process provided by the district office.
The Commission has 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, 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 addition, the Commission generally follows the rule that if
a 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
v. Building Engineering Services, 730 F.2d 377 (5th Cir. 1984). Although
the Commission is not generally concerned with the adequacy or fairness
of the consideration in a settlement agreement as long as some legal
detriment is incurred bargain, when one of the parties to a settlement
incurs no legal detriment, the agreement will be set aside for lack of
consideration. See Morita v. Department of the Air Force, EEOC Request
No. 05960450 (December 12, 1997).
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)).
The Commission determines that provision 13(b) fails to confer on
complainant anything more than that to which he is already entitled
(the agency will provide complainant any future counseling in
keeping with agency policy to respect the dignity of all employees).
The Commission therefore determines that provision 13(b) is void for
lack of consideration. However, given that other consideration was
exchanged through another provision of the agreement, we find that
the entire settlement is not invalid, but rather reformed without the
provision 13(b).
Accordingly, the agency's finding of no breach of the May 21, 2002
settlement agreement is AFFIRMED.
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 (S0900)
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 (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
May 15, 2003
__________________
Date
1The settlement agreement also provided that
the agency would pay complainant $500.00. This provision (provision
13(a)) is not at issue in the instant appeal.