Charles McCloud, Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 1999
05980624 (E.E.O.C. Oct. 6, 1999)

05980624

10-06-1999

Charles McCloud, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charles McCloud, Jr. v. United States Postal Service

05980624

October 6, 1999

Charles McCloud, Jr., )

Appellant, )

) Request No. 05980624

v. ) Appeal No. 01960089

) Agency No. 1G-771-1017-95

William J. Henderson, ) Hearing No. 330-95-8069X

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On April 8, 1998, the United States Postal Service (hereinafter referred

to as the agency) timely initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision

in Charles McCloud, Jr. v. Marvin T. Runyon, Jr., Postmaster General,

United States Postal Service, EEOC Appeal No. 01960089 (March 6, 1998).

The agency received the decision on March 11, 1998. EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation or material fact,

or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons

set forth herein, the agency's request is denied. On its own motion,

however, the Commission will reconsider the previous decision.

ISSUES PRESENTED

The issues presented are whether the settlement agreement of July 27,

1994, was void based on lack of consideration, and whether appellant was

discriminated against when he was not rehired by the agency in October

1994.

BACKGROUND

In 1993, appellant had been employed as a transitional employee when,

on September 20, 1993, he was issued a proposed notice of removal for

unsatisfactory attendance and removed. He filed a formal complaint

(No. 1G-771-1022-94), which was resolved by a settlement agreement

(SA) on July 27, 1994. Appellant, his representative, and an agency

representative (M1) agreed that appellant would withdraw his complaint

"based on the stipulation that the letter of removal will be removed

from my file."

In October 1994, appellant again sought employment with the agency but was

not hired based on his prior removal for cause, unsatisfactory attendance.

Appellant complained that, while the letter of removal had been taken

out of his file pursuant to the SA, an agency form PS 50 remained in his

file and contained information as to his removal. On November 28, 1994,

appellant filed the complaint at issue herein alleging discrimination

based on reprisal for prior EEO activity, i.e., No. 1G-771-1022-94,

when he was not hired in October 1994. In his complaint, appellant

asserted that, following settlement of No. 1G-771-1022-94, "all actions

were removed from my record, however [M1] would not approve my rehiring

because she stated this action was still a part of my records."

Following an investigation, appellant requested a hearing. A hearing

was held before an EEOC Administrative Judge (AJ). The AJ found that

the agency did not discriminate against appellant, that the agency's

action was consistent with its policy not to hire employees terminated

for cause unless required to do so by a grievance or EEO resolution,

and that the acting agency hiring official who denied his re-employment

was not aware of his prior EEO activity until she questioned M1.<1>

The AJ concluded that there was no showing of animus on the part of

agency officials, although she questioned whether appellant had a clear

understanding of the effect of the SA in the first instance.

The agency adopted the AJ's decision, and appellant filed an appeal.

On appeal, the previous decision first considered whether the agency had

breached the SA. It determined that appellant's EEO contact in October

1994 and subsequent complaint constituted an allegation of breach of the

SA pursuant to 29 C.F.R. �1614.504(a) of the Commission's regulations,

in that, appellant believed that the agency was in violation of the SA

because it continued to maintain documentation related to his removal

in his file. The decision found that the consideration offered by the

agency was of no meaning, since the agency retained the information in

appellant's file in another document. Consequently, since the agency

suffered no legal detriment, the decision found that no contract had

been formed. Nonetheless, the decision applied the legal doctrine of

detrimental reliance and found that appellant had acted to his detriment

in reliance when he withdrew his complaint and that therefore the SA

may be enforced. The decision held that appellant was entitled to the

remedy of removal of all documentation from his file pertaining to the

reason for his removal from the agency.

Next, the previous decision addressed appellant's allegation of

discrimination based on reprisal when it failed to hire appellant.

The decision reversed the AJ and found that appellant established a

prima facie case of discrimination and that, in response, the agency

failed to articulate a legitimate, nondiscriminatory explanation for

its actions. The decision rejected the agency's explanation that it did

not hire appellant because he had been previously removed for cause as

without foundation, since, having determined that the information should

have been struck from his file, the agency could not now rely on it.

The agency was directed to remove all documentation regarding appellant's

removal for cause, hire appellant, and tender appropriate back pay.

The agency has filed a request to reconsider (RTR) the previous decision.

The agency challenges the conclusion of the previous decision that the

agency incurred no legal detriment because it continued to maintain the

PS-50 in appellant's file. Also, the agency contends that, in applying

the doctrine of detrimental reliance, the decision erroneously inferred

that the agency had given appellant indications that the information

would be removed. The agency asserts that M1 in no way misled appellant,

and, in fact, as she testified without rebuttal, M1 fully explained the

limitations of the SA.

Appellant's representative asserts that the agency breached the SA

because, as the author of the SA, it was his intent "to have the removal

letter taken out of [appellant's] file so that it would not affect

his future employment" in exchange for withdrawal of the complaint.

In addition, however, the representative acknowledges that M1 informed

him "that the removal letter would be removed from his file but it

would still be noted that he had been removed from the [agency]."

He argues that the SA did not allow the agency to use the information

about appellant's removal in considering his application for rehire.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reconsider any previous decision

when the party requesting reconsideration submits written argument or

evidence that tends to establish at least one of the criteria of 29

C.F.R. �1614.407(c). Having reviewed the record and submissions of the

parties, we find that the agency's request fails to meet the criteria

of 29 C.F.R. �1614.407(c). Upon its own motion, the Commission will

reconsider the previous decision. 29 C.F.R. �1614.407(a). Having

reconsidered the previous decision, we affirm, in part, and reverse,

in part.

Allegation of Breach

As a matter of policy, the Commission encourages settlement of EEO

complaints at any stage of processing. 29 C.F.R. �1614.603; Jacobsohn

v. Department of Health and Human Services, EEOC Request No. 05930689

(June 2, 1994), citing, United States, et al. v. Allegheny-Ludlum

Industries, Inc. et al., 517 F.2d 826 (5th Cir. 1975), cert. den.,

425 U.S. 944 (1976); Shuman v. Department of the Navy, EEOC Request

No. 05900744 (July 20, 1990). The Commission's regulations require that

any settlement be in writing, signed by both parties, and identify the

allegations resolved. 29 C.F.R. �1614.603. Further, our regulations

provide an orderly process that allows complainants to contest an

agency's performance pursuant to a settlement. 29 C.F.R. �1614.504

et seq. In the matter before us, we find that appellant's EEO contact

and subsequent complaint constituted an allegation of breach of the

SA; the agency failed to properly address his initial contact as such,

thus contributing to significant delay in resolution of his concerns.

For this reason, we find that the previous decision properly considered

whether the agency breached the SA.

A settlement agreement reached in the EEO process is a contract between

the parties, and the principles of contract law apply thereto. See,

e.g., Shuman v. Department of the Navy, supra; Papac v. Department

of Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991).

Generally, the Commission will not inquire into the adequacy or fairness

of the consideration in a settlement agreement as long as some legal

detriment is incurred as part of the bargain. Miller v. Department of

the Treasury, EEOC Request No. 05960622 (December 5, 1997). When one

of the parties to the contract incurs no legal detriment, however,

a settlement agreement will be set aside for lack of consideration.

Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30,

1994), citing Terracina v. Department of Health and Human Services,

EEOC Request No. 05910888 (March 11, 1992).

In the matter before us, the Commission is not persuaded that the agency

incurred a legal detriment when it entered into the SA. In so finding,

we note that the extent of the agency's obligation required it to

remove the letter of removal while it maintained the same information

in another format. A binding agreement requires the exchange of

consideration, that is, a complainant must obtain something of value

in exchange for withdrawal of his complaint. Here, the agency incurs

no loss under the SA, while appellant, on the other hand, receives

no benefit. The Commission considers that agreements that contain

illusory promises are void. See Morita v. Department of the Air Force,

EEOC Request No. 05960450 (December 2, 1997); O'Brien v. USPS, EEOC

Request No. 05920560 (February 11, 1993).

Where an agreement is void and therefore unenforceable, in general,

the parties are returned to the position they occupied before the SA was

entered into. For that reason and having found the SA void, reinstatement

of the underlying complaint is appropriate.<2> Because of the passage

of time and the agency's failure to entertain appellant's EEO contact as

an allegation of breach, we will direct the agency to notify appellant of

the remanded allegations within ten calendar days of its receipt of this

decision and process the complaint in an expedited manner. In so holding,

we reject the previous decision's application of detrimental reliance.

Complaint of Reprisal Discrimination

With regard to the instant complaint, the previous decision found that

appellant established a prima facie case of discrimination in response

to which the agency failed to articulate a legitimate, nondiscriminatory

explanation for its actions. That determination, however, rested on the

application of the legal doctrine of detrimental reliance. As stated

above, we reject this analysis and, instead, finding no valid SA, have

reinstated the underlying complaint. We turn therefore to consideration

of appellant's allegation of reprisal discrimination on its merits.

Generally, claims of disparate treatment are examined under the tripartite

analysis first enunciated in McDonnell Douglas Corporation v. Green,

411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st

Cir. 1976). For appellant to prevail, he must first raise an inference

of discrimination, i.e., that a prohibited consideration was a factor

in the adverse employment action. Next, the agency must articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Finally, it is

appellant's burden to demonstrate by a preponderance of the evidence that

the agency's reasons were a pretext for discrimination, that is, that the

agency acted on the basis of a prohibited reason or with discriminatory

animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

To establish a prima facie case of reprisal discrimination, appellant

must show that (1) he engaged in prior protected activity; (2) the

acting agency official was aware of the protected activity; (3) he

was subsequently disadvantaged by an adverse action; and, (4) there

is a causal link between the protected activity and adverse action.

Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;

Manoharan v. Columbia University College of Physicians and Surgeons,

842 F.2d 590, 593 (2d Cir. 1988). The causal connection may be shown by

evidence that the adverse action followed the protected activity within

such a period of time and in such a manner that a reprisal motive is

inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).

Here, we agree with the finding of the AJ that the agency did not

discriminate against appellant. In response to appellant's prima facie

case of reprisal discrimination, the agency articulated a legitimate,

non-discriminatory reason for its refusal to rehire appellant in October

1994, that is, it was the agency's policy not to rehire employees who had

been removed for cause, in this case, unsatisfactory attendance. Finally,

the record does not show that the agency acted with discriminatory animus.

In fact, the record shows that the hiring official was not involved in

appellant's prior EEO activity and had only a tangential knowledge of

it and only after her discussion with M1. The record indicates that the

hiring official acted solely on the basis of the agency's policy. We find

no evidence of retaliatory motivation on her part even if she mistakenly

relied on the form that should have been removed from appellant's file.

See, e.g., Allen v. USPS, EEOC Request No. 05940532 (September 22, 1995).

We find therefore that the agency did not discriminate against appellant

in reprisal for his prior EEO activity.

CONCLUSION

After a review of the agency's request for reconsideration, the

appellant's reply thereto, the previous decision, and the entire

record, the Commission finds that the agency's request fails to meet

the criteria of 29 C.F.R. �1614.407(c). The Commission will reconsider

the previous decision on its own motion. Upon reconsideration, the

decision in EEOC Appeal No. 01960089 (March 6, 1998) is AFFIRMED, in

part, and REVERSED, in part. There is no further right of administrative

appeal on a decision of the Commission on a Request for Reconsideration.

The agency is directed to comply with the Order, below.

ORDER

The agency is ORDERED to reinstate Complaint No. 1G-771-1022-94 at the

point processing ceased. The agency shall continue processing this

complaint in accordance with 29 C.F.R. �1614.108. The agency shall

acknowledge to the appellant that it has received the remanded complaint

within ten (10) calendar days of the date this decision is received.

The agency shall issue to appellant a copy of the investigative file and

also shall notify appellant of the appropriate rights within ninety (90)

calendar days of the date this decision is received, unless the matter

is otherwise resolved prior to that time. If the appellant requests a

final decision without a hearing, the agency shall issue a final decision

within thirty (30) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (Q0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Oct. 6, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1 The AJ noted that M1 testified that she had "made it clear [to appellant

and his representative that] she was only willing to remove the letter

from the file...told him that she would not modify the underlying action."

AJ's Decision, p. 8. Also, in her statement, she told appellant's

representative "that this would not change the fact that [appellant]

was terminated and that his form 50 would still reflect termination."

M1's statement is confirmed by appellant's representative in his comments

in response to the agency's request.

2 The Commission need not address the question of the agency's bad faith.

We have held that bad faith may constitute a breach of an agreement.

See Wong v. USPS, EEOC Request no. 05931097 (April 29, 1994).