01A01991
09-27-2000
Barbara G. Likely, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara G. Likely v. United States Postal Service
01A01991
September 27, 2000
Barbara G. Likely, )
Complainant, )
)
v. ) Appeal No. 01A01991
) Agency No. 1-H-324-0042-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 7, 1999, finding that it was
in compliance with the terms of the October 13, 1998 settlement agreement
into which the parties entered.<1> See EEOC Regulation 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The record shows that after a review of its own records, the agency
determined that the Office of Workers' Compensation Programs (OWCP) did
not have complainant on its rolls as a permanent limited duty worker as
reflected in Injury Compensation files. The agency provided complainant
with notice of this determination in August 1996, and instructed her
to provide medical documentation to justify her retention in light
duty status. Complainant questioned the agency's determination because
she received no notification from OWCP that her status had changed.
In October 1996, after complainant did not submit the requested medical
documentation, the agency sent her home from work, and did not permit
her to return until December 1996. In the meantime, complainant filed
a �request for reoccurrence' with the OWCP. The record reflects that
OWCP denied the request in an April 23, 1997 decision.
On October 13, 1998, complainant and the agency entered into a settlement
agreement in resolution of a complaint that complainant filed.
The settlement agreement provided, in pertinent part, that:
(1) I, [complainant], do hereby agree to the following settlement
on my formal EEO complaint filed on February 13, 1997, based on the
stipulation(s) that: If the complainant, . . . submits Department of
Labor paperwork indicating that her claim was accepted as a permanent
limited duty condition which has not been further adjudicated, the Agency
will adjust their Injury Compensation files to reflect the same.
(2) The parties will then meet to discuss settlement for the period of
time, October 17, 1996 to December 6, 1996, that the complainant was not
permitted to work.
By letter to the agency dated September 9, 1999, complainant claimed
that the agency breached the settlement agreement, and requested that
the agency reinstate her complaint. Specifically, complainant contends
that the agency failed to carry out either of the above provisions, and
that the entire settlement agreement should be declared null and void
because the agency engaged in bad faith when it entered the agreement.
In its December 7, 1999 FAD, the agency concluded that because OWCP
did not have complainant on its rolls, the agency could not reinstate
her to an accepted status. Additionally, the agency found that because
complainant's OWCP claim was "further adjudicated," their files could
not be adjusted pursuant to the agreement, and that provision 2 was not
triggered because it was contingent on complainant having an accepted
claim.
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 the consideration in a settlement agreement as long as
some legal detriment is incurred as part of the 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). In the
present case, the Commission is not persuaded that the agency incurred
a legal detriment when it entered into the settlement agreement. The
Commission determines that all the agency agreed to do, in effect, was
to change its records and to pay complainant what she was entitled to if
she could produce the appropriate OWCP documentation to authorize it,
which is something that it was already under a legal obligation to do.
Where the promisor receives no benefit and the promisee suffers no
detriment, the whole transaction is a nudum pactum. Accordingly, since
complainant received no consideration for her agreement to withdraw her
complaint, the Commission found that the subject settlement agreement
was not based upon adequate consideration and is unenforceable.
The agency's determination that it did not breach the settlement agreement
is VACATED and we REMAND complainant's February 13, 1997 complaint to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER
Within fifteen (15) calendar days of the date this decision becomes final
the agency shall reinstate complainant's February 13, 1997 complaint,
from the point processing ceased and thereafter process the matter in
accordance with Part 1614 Regulations. Within fifteen (15) calendar
days of the date this decision becomes final, the agency shall notify
complainant in writing that it has reinstated her February 13, 1997
complaint and will process the matter in accordance with EEOC Regulations.
A copy of the letter notifying complainant of the reinstatement of her
complaint must be submitted to the Compliance Officer as referenced
herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
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)(Supp. V 1993). 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 (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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:
September 27, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.