Caroline Martinez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 26, 2004
01a41314 (E.E.O.C. Apr. 26, 2004)

01a41314

04-26-2004

Caroline Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Caroline Martinez v. United States Postal Service

01A41314

April 26, 2004

.

Caroline Martinez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A41314

Agency No. 4-G-780-0182-03

DECISION

Complainant filed a timely appeal with this Commission from an agency

final decision dated November 12, 2003, finding no breach of a September

15, 2003 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.

By correspondence dated April 24, 2003, complainant contacted the EEO

Office. Complainant claimed that she had been returned to full duty

at her previous position, with no �rehab� job offer from the Office of

Workers' Compensation Programs (OWCP). Complainant averred that the

agency reassigned her with no prior notice whatsoever, and indicated that

this position far exceeds her current physical limitations. Complainant

claimed discrimination on the basis of disability. The parties resolved

this matter with the instant settlement agreement.

The September 15, 2003 settlement agreement provided, in pertinent

part, that:

(1) By October 1, 2003, [complainant] will provide her supervisor...[with]

Form(s) CA-17 completed and updated by her physician(s) identifying

applicable, current job restrictions and work tolerances.

(2) On October 10, 2003, [complainant's supervisor] will provide to

Human Relations Specialist.....the details of an updated, accurate

rehabilitation job offer for [complainant] that accommodates the physical

limitations supplied by Form(s) CA-17 presented by [complainant].

(3) By October 15, 2003, HR Specialist....will supply the formal

rehabilitation job offer for [complainant] to Waco Postmaster...to

present to [complainant] on that date.

(4) By October 25, 2003, [complainant] will accept or reject the formal

rehabilitation job offer.

By December 1, 2003, [complainant's supervisor] will meet with

[complainant] to offer appropriate, available job skills training for

her finalized rehabilitation position.

By correspondence dated September 23, 2003, complainant informed the EEO

office that she would be delayed in fulfilling provision (1) because

her physician had to coordinate his assessment with OWCP, noting that

she informed her supervisor of this delay. Furthermore, complainant

requested another re-dress at a later date, and expressed the hope that

her physician and OWCP can properly assess her limitations and make her

a suitable new job offer.

In correspondence dated October 11, 2003, complainant made her prior

correspondence, contending that she had asked that the implementation of

the settlement agreement be ceased so that OWCP would be involved in her

new job offer. Complainant claimed that the current settlement agreement

is not valid because it does not include OWCP. Complainant argued

that a rehabilitation job offer must be approved by OWCP. Complainant

claimed that the agency already �violated� her by reassigning her to an

unsuitable position without any participation from OWCP. Complainant

further argued that the OWCP process must be used in making her a new

job offer. By letter to the agency dated October 28, 2003, complainant

requested that her complaint be reinstated. Complainant noted that the

schedule outlined in the settlement agreement had not been adhered to.

In further correspondence, dated November 3, 2003, complainant requested

that the agency acknowledge her September 23, 2003 letter asking that the

settlement agreement be rescinded and her complaint reinstated. Again,

complainant asserted that OWCP must be included in the rehabilitation

job offer process, and must be included in any settlement agreement

designed to make her a suitable job offer.

In its final decision, the agency acknowledged complainant's November 3,

2003 breach claim, and her request that the agency declare the settlement

agreement null and void and reinstate her complaint. In addressing her

request that OWCP be included in a new settlement agreement, the agency

advised complainant that this action could not be accomplished in the

EEO process. The agency further advised complainant that her supervisor

was willing to �honor� the terms of the settlement agreement as soon as

complainant provided the Form CA-17 to him, notwithstanding the expiration

of the dates in the settlement agreement provisions. The agency also

stated that once the Form CA-17 is completed by complainant's physician,

a formal rehabilitation job offer will be made, noting that all job offers

had to be reviewed and approved by the Department of Labor before they

are officially offered. Based on this assessment, the agency determined

that there was no breach of the settlement agreement.

In Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955

(7th Cir. 1973), the court held that a valid contract must be based upon

consideration where some right, interest, profit, or benefit accrues

to one party or some forbearance, detriment, loss, or responsibility is

given, suffered, or undertaken by the other. Where the promisor receives

no benefit and the promisee suffers no detriment, the whole transaction

is a nudum pactum. See Collins v. United States Postal Service, EEOC

Request No. 05900082 (April 26, 1990) (a settlement agreement that was

not based upon adequate consideration was unenforceable).

Pursuant to the instant settlement agreement, the agency agreed that

it would provide complainant with a rehabilitation job offer based on

the information provided by her physician in a completed Form CA-17.

Complainant, in turn, agreed to withdraw her EEO complaint. We find

that by merely agreeing to treat complainant in accordance with existing

statutes and regulations, the agency provided complainant nothing more

than that to which she was entitled as an employee covered by the OWCP.

We find that she received no consideration for her agreement to withdraw

her complaint. We note that the agency agreed to complete various stages

of the job offer process by certain dates, but we note further that these

dates have expired. Moreover, although the agency has agreed to continue

to �honor� the agreement upon complainant's completion of provision

(1), we find that in doing so, it does not obligate itself to undertake

any action beyond what is required in the OWCP rehabilitation job offer

process once any eligible employee submits a completed Form CA-17.

Based on the foregoing, we find that the settlement agreement is

unenforceable; thus, in accordance with regulations, the agency should

reinstate complainant's complaint for further processing from the point

processing ceased. See 29 C.F.R. � 1614.504.

Accordingly, we VACATE the agency's final decision, and we REMAND this

case to the agency to reinstate complainant's complaint at the point at

which processing ceased, as set forth in the ORDER below.

ORDER

The agency is ORDERED to take the following action:

Within thirty (30) calendar days of the date this decision becomes final,

the agency is ordered to reinstate complainant's underlying complaint

(Agency No. 4-G-780-0182-03) at the point at which processing ceased,

and continue to expeditiously process her complaint.

A copy of pertinent documentation confirming the above action must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 (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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

April 26, 2004

__________________

Date