01986018
09-02-1999
Cheryl O. Charles, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cheryl O. Charles v. United States Postal Service
01986018
September 2, 1999
Cheryl O. Charles, )
Appellant, )
)
v. ) Appeal No. 01986018
) Agency Nos. 4H-370-0091-98
William J. Henderson, ) 4H-370-0131-98
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's decision denying her request to
reinstate her complaint. See 29 C.F.R. �1614.402, 504(b); EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Two complaints filed by appellant were resolved by a settlement agreement
entered into on May 14, 1998. The agreement stated in relevant part:
1. [Appellant] will be placed in a rotation as an off day delivery
supervision relief at Hickory Hill, Mallory, Holiday City, and Whitehaven
Stations effective May 29, 1998.
2. [Appellant] states that she is fully capable of performing the full
duties of a Delivery Supervisor. [Appellant] understands that when she
is certified full fit for duty by her doctor, she will be considered
for a Finance Supervisor position at Hickory Hill. [Appellant] will not
automatically be moved from the Hickory Hill Station at the end of the
agreement. If her doctor certifies a permanent disability the parties
agree to review the matter. ...
4. All parties will treat each other fairly, equally, and with respect.
5. All parties agree that all concerns, or comments will be addressed
to each other instead of to other employees.
...
8. This agreement will remain confidential except for parties who need
to know in order to implement its terms.
The record reveals that in a letter to the agency dated May 21, 1998,
appellant stated that management has not complied with the settlement
agreement. According to appellant, the agency breached the second,
fourth, fifth, and eighth provisions of the agreement. Appellant stated
that on May 20, 1998, she was informed by several carriers that she was
to be fired the following week. Appellant stated that she contacted
management and it was confirmed that she would be issued a notice
of removal the following week. According to appellant, she was also
informed that she would be a relief supervisor until her final day and
that another individual had been selected to replace her at the Hickory
Hill Station. Appellant argues that she was not being treated with respect
since craft employees knew about her impending removal before she did.
In its final decision, the agency determined that the settlement agreement
has not been breached. In support of its position, the agency provided
a memorandum dated June 3, 1998, from the Manager, Customer Service,
Hickory Hill Station. In this memorandum, the Manager states that
prior to the execution of the settlement agreement, he gave appellant an
investigative interview concerning an agency inspection's investigative
memorandum that had been presented about her falsification of Form
CA-1 and a conduct violation. The Manager states that appellant
was informed that a proposed removal would be issued for removal
in thirty days. According to the Manager, the settlement agreement
did not have anything to do with the proposed removal, and it was not
discussed during the EEO process. The Manager states that he told an
official who would be acting in his position during the week of May 23,
1998, that if any paperwork came down on appellant while he was away,
that official would have to handle it. The Manager asserts that he
never said anything about what type of action was coming down, and he
did not mention an impending action to another person. The Manager also
denied that the individual mentioned by appellant has been considered to
assume appellant's position as a relief supervisor. According to the
Manager, appellant has been treated fairly, equally, and with respect.
The Manager maintains that he has not told or has any knowledge of any
employee being told of the settlement agreement, or any craft employee
being told of any action proposed against appellant.
On appeal, appellant states that less than one week after the execution
of the settlement agreement, the agreement was discussed with numerous
employees and the decision to issue her a notice of removal had been
made after a biased investigation. Appellant states that on May 20,
1998, three craft employees informed her that her removal from employment
with the agency was imminent. Appellant argues that the manner in which
the notice of removal was issued demonstrates that the Manager had no
intention of treating her fairly, equally, or with respect. Further,
appellant contends that the Manager failed to address all comments about
her removal to her instead of to other employees.
ANALYSIS AND FINDINGS
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall
resolve the matter and respond to the complainant, in writing. If the
agency has not responded to the complainant, in writing, or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
35 days after he or she has served the agency with the allegations of
noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
Settlement agreements are contracts between appellant and the agency and
it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its
meaning is determined from the four corners of the instrument without
resort to extrinsic evidence. Smith v. Defense Logistics Agency, EEOC
Appeal No. 01913570 (December 2, 1991). Moreover, other standard
contractual requirements such as the necessity of consideration,
apply in this context. Shuman v. Department of the Navy, EEOC Request
No. 05900744 (July 20, 1990); Roberts v. United States Postal Service,
EEOC Appeal No. 01842193 (May 9, 1985). 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 settlement agreement will be set aside for lack of consideration.
See Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30,
1994); Terracina v. Department of Health and Human Services, EEOC Request
No. 05910888 (March 11, 1992).
Upon review, we find that the settlement agreement is not a binding
agreement. It is clear from the record that appellant was to be removed
from employment with the agency shortly after the settlement agreement
was executed. In light of appellant's imminent removal, we find that
appellant received no consideration in exchange for her agreement to
withdraw her complaint i.e., the agency's agreement to place her in
the rotation as an off day delivery supervision relief and to consider
appellant for a Finance Supervisor position were not to go into effect
until May 29, 1998, after her termination. 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). The agency's
decision is hereby REVERSED. This matter is REMANDED to the agency for
further processing in accordance with the Order below.
ORDER
The agency is ORDERED to reinstate appellant's complaints and resume
processing of appellant's complaints from the point processing ceased.
The agency shall acknowledge to appellant that it has reinstated and
resumed processing of appellant's complaints.
A copy of the agency's letter of acknowledgment to appellant 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 RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
Sept. 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations