0120113488
01-18-2013
Abraham Maldonado, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Abraham Maldonado,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120113488
Agency No. 4B-006-0013-10
DECISION
Complainant filed a timely appeal with this Commission from a final Agency determination (FAD) dated May 18, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former or current City Carrier (transitional employee) in an Agency facility in Puerto Rico. His employment status is not clear from the record.
On March 4, 2010, Complainant and the Agency entered into a settlement agreement to resolve an administrative EEO case. The settlement agreement provided, in pertinent part, that:
Management agrees to consider Counselee for reemployment as R.C.A. (rural carrier associate) provided there is a legitimate vacancy and that he meets the minimum requirements of the position.
By correspondence to the Agency postmarked on April 16, 2011, Complainant alleged that the Agency breached the settlement agreement when on April 6, 2011, he presented it with a Department of Labor, Office of Workers' Compensation Programs (OWCP) form CA-17 setting out his medical limitations and was not seriously considered for the position of R.C.A. He also alleged that the Agency retaliated against him for prior EEO activity when it did not employ him. Complainant asked to be reinstated to his position of letter carrier retroactive to September 2010, to be reasonably accommodated therein, and for compensatory damages.
In its May 18, 2011 FAD, the Agency concluded that it did not breach the settlement agreement. It pointed to the affidavit by the Manager, Human Resources, Caribbean District, stating that Complainant's CA-17 showed he was not medically suitable to perform the essential functions of a full-time RCA assignment since he was limited to working six hours daily and had a restriction of zero bending and stooping.
On appeal Complainant argues that he had a part time job of six to seven hours daily. He adds that he thinks his doctor mistakenly checked a box on the CA-17 form indicating he could do no bending or stooping, and likely meant to check the adjacent box to indicate he was not to kneel.1
ANALYSIS
Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, so long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the provisions of the agreement will be set aside for lack of consideration. See MacNair v. United States Postal Service, EEOC Appeal No. 01964653 (July 1, 1997).
Here, the Agency promised to consider Complainant for reemployment to the position of R.C.A. if there was a vacancy and he met the minimum requirements for the position. The Agency incurred no legal detriment, and Complainant received no consideration (meaning something of value) in the settlement agreement.
Allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints rather than as a breach of settlement agreement claim. See 29 C.F.R. � 1614.504(c). Complainant's claim that the Agency discriminated against him when it failed to rehire him after he presented it his CA-17 on April 6, 2011, is a new claim of discrimination, which must be processed under 29 C.F.R. Part 1614.
The settlement agreement is void, and the Agency shall comply with the order below.
ORDER
The Agency is ordered to resume processing complaint 4B-006-0013-10 from the point processing ceased in accordance with 29 C.F.R. Part 1614. It shall also provide Complainant EEO counseling on his claim that he was retaliated against when the Agency failed to rehire him after he presented it his CA-17 on April 6, 2011, and any other claims he raises during this counseling, and then process the claim(s) under 29 C.F.R. Part 1614.
The Agency shall acknowledge to Complainant in writing that it has resumed processing remanded complaint 4B-006-0013-10 within thirty (30) calendar days of the date this decision becomes final. It shall submit a compliance report which shall include supporting documentation verifying that the corrective action ordered has been implemented, in accordance with the implementation paragraph below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (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 (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
January 18, 2013
__________________
Date
1 Complainant does not indicate that he returned to his doctor to get this corrected.
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0120113488
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113488