01A43468_r
09-08-2004
Young H. Baek, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Young H. Baek v. United States Postal Service
01A43468
September 8, 2004
.
Young H. Baek,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43468
Agency No. 1K-221-0023-04
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated March 26, 2004, finding that it was in compliance with the
terms of a June 13, 2001 settlement agreement. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The July 13, 2001 settlement agreement provided, in pertinent part, that:
(3) Management will do its best to accommodate [complainant's] as[t]hma
condition on an as needed basis. She will let her supervisor know when
she needs such accommodation. Both parties will try to be flexible and
understanding regarding the accommodation.
Complainant contacted the agency EEO office claiming that the agency
was in breach of the settlement agreement. Specifically, complainant
alleged that on December 10, 2003, she was having difficulties breathing.
Complainant stated that she looked for her supervisor, but he was not
in the area; and that she went to the bathroom and to the dock to get
fresh air and take her medication. Complainant stated that upon her
return to her work area, her supervisor allegedly confronted her about
being away from her machine and failing to inform him of her absence.
Complainant claimed that her supervisor continually harassed her and
does not accommodate her as agreed to in the settlement.
The record also contains an Information for Pre-Complaint Counseling form,
prepared by complainant on January 28, 2004, and identified as Complaint
No. 1K-221-0023-04. Therein, complainant alleged breach of the instant
settlement agreement, and addresses alleged discriminatory incidents,
including a suspension and a letter of warning.
In its March 26, 2004 decision, the agency concluded that complainant had
alleged that the agency breached provision 3 of the settlement agreement,
but determined that the agreement was not breached. The agency found that
complainant failed to show how she was not accommodated for her illness.
Complainant's supervisor stated that he allows complainant to take her
medication everyday, but that he needs to know where his employees are
when they are away from their assignment.<1>
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 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).
Although the Commission is not generally concerned with the adequacy
or fairness of consideration in a settlement agreement as long as some
legal detriment is incurred, 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 Air Force, EEOC Request
No. 05960450 (December 12, 1997); MacNair v. United States Postal Service,
EEOC Appeal No. 01964653 (July 1, 1997).
In the instant case, the settlement agreement requires the agency to �do
its best to accommodate Ms. Baek's as[t]hma condition . . .� (emphasis
added). The Commission finds that provision (3) fails to confer on
complainant anything more than that to which she is already entitled.
Therefore, provision (3) is void for lack of consideration. However,
because consideration was exchanged through another portion of the
agreement (relating to the expungement of an October 10, 2000 letter
of warning from complainant's personnel file) we do not find that the
entire agreement is invalid, but instead reformed so as to no longer
include provision (3).
We note that on appeal, complainant contends that she has been subjected
to �unwarranted discipline,� including an October 21, 2003 letter of
warning and a December 31, 2003 suspension, which she believes �are in
violation of the settlement agreement. As noted in the agency's decision,
these matters are not addressed by the settlement agreement. Moreover,
the record indicates that complainant received counseling on the matters,
which are being processed under Complaint No. 1K-221-0014-04. Given our
determination herein regarding provision 3 of the settlement agreement,
we similarly find that if complainant believes that the agency is failing
to accommodate her disability, she should pursue that claim through the
EEO process as a new complaint. If complainant decides to pursue her
claim regarding alleged failure to accommodate through the EEO process,
the agency should make a determination regarding consolidation with
Complaint No. 1K-221-0014-04, pursuant to 29 C.F.R. � 1614.606.
Accordingly, the agency's decision was proper and is hereby 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
September 8, 2004
__________________
Date
1 The agency decision also noted that
complainant raised additional matters in her breach statement, including
a letter of warning, which are being processed. Moreover, on appeal,
the agency notes that additional issues were addressed at the informal
stage of the complaint process, and that these additional matters (which
include an October 21, 2003 letter of warning and a suspension issued
in December 2003), are presently being investigated under Complaint
No. 1K-221-0014-04. Accordingly, the instant appeal shall only address
the breach claim.