Cheryl O. Charles, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01986018 (E.E.O.C. Sep. 2, 1999)

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