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).