0120172886
01-31-2018
Will K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Will K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120172886
Agency No. 4B-006-0011-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated July 31, 2017, finding that it was in compliance with the terms of a February 23, 2017 settlement agreement. The Commission accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, Complainant worked at the Agency's Cabo Rojo Post Office in Puerto Rico. Believing that he was subjected to discriminatory harassment, which include slurs, epithets, and a death threat, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On February 23, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency would undertake the following actions:
(1) Follow up on the appeal of the CA1 request by [Complainant] for a job-related condition. Paperwork was already submitted.
(2) Have a representative of Safety inspect and recommend appropriate measures to OIC to execute.
(3) As a result of this situation discussed already with management, I will need medical treatment for the PTSD developed.
(4) Evaluate and determine appropriate monetary compensation for punitive damages generated by medical expenses to treat harm suffered as mental anguish due to the situation of harassment and death threat.
In early May 2017, by letter to the agency, Complainant alleged breach. According to Complainant, his CA1 form was assigned to a hearing representative but was not yet approved, a safety inspection was not done, and consequently the front gate remained broken. Finally, Complainant stated that he had not received any medical treatment nor received any monetary compensation.
In its July 31, 2017 decision, the Agency concluded that provisions (1), (3), and (4) were void for lack of consideration, and provision (2) had been "cured". While the Agency agreed that the inspection required by provision (2) "could have been done sooner," the inspection was conducted following Complainant's claim of breach and the lock "works manually and is functional." According to the Agency, finding that provisions (1), (3) and (4) are void, "does not, however, affect the remainder of [the] agreement."
Complainant filed the instant appeal.
ANALYSIS
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 the instant case, with the assistance of a mediator, Complainant and the Agency executed a settlement agreement which resolved Complainant's EEO complaint. Thereafter, however, the Agency contends it is unable to perform as agreed, with the exception of provision (2). The Agency reasons that most of the settlement agreement terms are void for lack of consideration and vagueness, but concludes that the performance of provision (2) is sufficient to preserve the resolution of Complainant's complaint.
When a settlement agreement lacks adequate consideration, it is unenforceable. See Collins v. United States Postal Service, EEOC Request No. 05900082 (April 26, 1990). 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). Also, a settlement agreement that is too vague to enforce is invalid. See Bibb-Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009).
With respect to provision (1), the Agency simply concluded in its decision that "once your paperwork is submitted" the Department of Labor has sole jurisdiction and it cannot take any action. The settlement language plainly notes that "paperwork already submitted". Therefore, the Agency's consent to provision (1) seems lacking in good faith. The language in provision (3) also supports such conclusion, whereby the plain language simply states that Complainant "will need medical treatment . . .." The statement describes the need and desire of Complainant but does not require any action by the Agency. It appears, from the first-person language and the content of the provisions, that the Agency permitted Complainant himself to draft the agreement and then blindly agreed to the terms without any intention to provide Complainant with the necessary consideration for giving up his EEO complaint.
In provision (4), which the Agency itself describes as "the most problematic", the Agency only agrees to "evaluate and determine" the appropriate "monetary compensation". The provision contains no substantive Agency obligation and provides, at best, only an illusory benefit to Complainant. Further, on appeal, the Agency argues that "punitive damages" are prohibited in EEO cases and therefore the provision is void. Yet again, we find the inclusion of this language and the absence of an obligation to provide any actual payment to Complainant as additional evidence of the Agency's bad faith.
While the Commission encourages the resolution of complaints by the parties, we are dismayed by the meaningless provisions of the instant agreement. We agree with the Agency that provisions (1), (3) and (4) are void for lack of consideration. The Commission strongly disagrees, however, that the safety inspection (provision (2)) alone, completed by the Agency approximately four months after the execution of the agreement, is sufficient to preserve the settlement. Similar to provision (4), provision (2) only obligates the Agency to "inspect and recommend" a safety issue. The Agency is not required to take any corrective action following the inspection. To the extent that it did so, as noted in its decision (lock "works manually and is functional"), we find that the Agency has simply provided something that Complainant is already entitled to (i.e. a safe workplace). The Agency did not incur any legal detriment in exchange for Complainant giving up his EEO complaint.
Consequently, we find that the settlement agreement is invalid in its entirety. Complainant's complaint shall be reinstated.
CONCLUSION
The Agency's final decision is MODIFIED and the complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to resume processing of the underlying complaint from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of the underlying 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 31, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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0120172866