0120091757
08-27-2009
Daisy M. DeGout, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daisy M. DeGout,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091757
Agency No. 1A-104-0011-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 20, 2009, finding that it was
in compliance with the terms of the July 23, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) The parties agree that any communications that is relayed to
[complainant] by the [Manager] or Injury Control must be submitted to
[complainant] in written documentation by management in a timely manner.
(2) The [Union] Coordinator and [the Supervisor] will schedule to
meet to discuss and remedy all outstanding issues of [complainant's]
concerns on pay.
By letter to the agency dated October 27, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the Supervisor did not have any intention to meet to discuss
complainant's pay issues.
In its January 20, 2009 FAD, the agency concluded the Supervisor is
not longer relaying verbal messages to complainant. Further, the issue
of pay is a matter before the Office of Workers Compensation Programs.
Therefore, the agency has determined that management has complied with
the settlement agreement. This appeal followed.
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.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
We find that provision 1, requiring that the parties engage in written
communication in a timely manner, is too vague to allow a determination
as to whether the agency has complied with the provision. See Williams
v. United States Postal Service, EEOC Appeal No. 01992286 (March 1,
2000) (citing Dove v. United States Postal Service, Appeal No. 01963814
(January 3, 1997) (provision requiring management to act professional
toward complainant was too vague to be enforceable). Therefore, provision
1 is void and unenforceable.
Moreover, in provision 2, the agency agreed to have the Union Coordinator
and the Supervisor set up a time to discuss complainant's outstanding pay
concerns. Generally, the adequacy or fairness of the consideration in a
settlement agreement is not at issue, as 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 MacNair v. United States
Postal Service, EEOC 01964032 (July 1, 1997); Juhola v. Department of
the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracine
v. Department of Health and Human Services, EEOC Request No. 05910888
(March 11, 1992). By agreeing to schedule a meeting, the agency fails to
provide complainant with any significant benefit beyond what she would
have received apart from the settlement agreement. Thus, we find that
provision 2 is also void and unenforceable.
CONCLUSION
Accordingly, we find that since the settlement agreement only contained
the above referenced provisions, the entire agreement is void. The
Commission REVERSES the agency's final decision and REMANDS this
matter to the agency for reinstatement of complainant's underlying
EEO complaint from the point processing ceased. See Bush v. United
States Postal Service, EEOC Appeal No. 01A11640 (August 8, 2002).
ORDER (E0408)
The agency is ORDERED to take the following actions:
1. Within fifteen (15) calendar days from the date this decision becomes
final, the agency shall reinstate complainant's underlying complaint
from the point processing ceased, and immediately undertake processing
in accordance with Part 1614 regulations.
2. Within fifteen (15) calendar days from the date this decision becomes
final, the agency shall notify complainant in writing that his complaint
is reinstated and that it will be processed in accordance with this
Order.
A copy of the agency's letter notifying complainant of the reinstatement
of the complaint must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 27, 2009
__________________
Date
2
0120091757
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091757