0120081972
09-15-2008
Ruth E. Rau, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ruth E. Rau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081972
Agency No. 4E-970-0077-07
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated January 22, 2008, finding it was in compliance with the terms of the
October 19, 2007 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) Management will make a good faith effort to fairly, equitably
and reasonably distribute work hours, including split shifts, between
PTF clerks, consistent with the needs of the Postal Service.
(2) [Complainant] will make a good faith effort to learn any and
all duties as assigned.
By letter to the agency dated November 21, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her complainant. Specifically, complainant alleged
that her Postmaster has "continued to have me on split shifts six days a
week for two more weeks." Further, with respect to the first afternoon
complainant was scheduled to have off, complainant asserted that the
Postmaster changed it at the last minute. When complainant finally
was given an afternoon off, she contends that her morning hours were
cut short and a younger clerk was given more hours. These actions,
alleged the complainant, violated the agency's obligation to make a
"good faith effort to distribute work hours and split shifts fairly
between [herself] and the younger PTF clerk."
In its January 22, 2008 decision, the agency concluded that the agreement
was not breached. The agency provided several reasons for the actions
complained of by complainant. For example, the agency stated that,
although complainant expected immediate changes, she worked a split
schedule for the two weeks following the execution of the agreement
because the schedule was created before the settlement was entered.
As to changing complainant's afternoon off, the agency explained that
the change was the result of "service and staffing needs." Also, the
postmaster asserted that she could not give complainant forty hours or a
regular schedule, because as a PTF she needed to utilize complainant as
a flexible employee. The postmaster further noted that complainant did
receive more hours than the other PTF. Consequently, the agency concluded
that it was in compliance with the settlement agreement terms.
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 find that the terms of the agreement are too
vague and generalized to be enforced. See Williams v. United States
Postal Service, EEOC Appeal No. 01992286 (March 1, 2000) (citing Dove
v. United States Postal Service, Appeal No. 01963814 (January 3, 1997)
(provision requiring management to act professionally toward complainant
was too vague to be enforceable).
Moreover, we find that the agreement fails to provide complainant with
any significant benefit beyond what he was otherwise entitled to as an
agency employee. 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 agreement will be set aside for
lack of consideration. See MacNair v. United States Postal Service, EEOC
Appeal No. 01964032 (July 1, 1997); Juhola v. Department of the Army,
EEOC Appeal No. 01934032 (June 30, 1994) (citng Terracine v. Department
of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
Therefore, we find that the October 19, 2007 settlement agreement is
void.
CONCLUSION
Accordingly, the agency's decision finding it was in compliance with
the terms of the settlement is VACATED. The matter is REMANDED to the
agency for reinstatement of the complainant's underlying EEO complaint
from the point where processing ceased.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (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
September 15, 2008
Date
2
0120081972
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081972