01986812
04-20-2000
Dominic P. Ward , Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Dominic P. Ward v. Department of the Air Force
01986812
April 20, 2000
Dominic P. Ward , )
Complainant, )
)
v. )
) Appeal No. 01986812
F. Whitten Peters, ) Agency No. AL900980796
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from an agency
determination dated May 13, 1998, regarding complainant's claim of
breach of a September 25, 1997 settlement agreement that the parties
entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.402);
29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified at 29 C.F.R. � 1614.405).
On February 13, 1997, complainant filed a formal complaint, alleging
unlawful employment discrimination on the bases of sex and in reprisal
when the agency purportedly denied him advanced sick leave. On September
25, 1997, the agency and complainant settled the complaint.
The settlement agreement provided, in pertinent part, that:
2. In exchange for the promises of the Aggrieved in paragraph one of
this agreement, the Agency will:
a. not retaliate against or take any action in reprisal for the
Complainant having exercised his right to file an EEO complaint and
otherwise participate in the EEO process;
b. the Agency agrees that discrimination in the workplace is unlawful
and will not be tolerated; and,
c. there is a commitment from the Agency to ensure all persons are
treated fairly and equitably.
By letter to the agency dated May 11, 1998, complainant alleged that
the agency was in breach of the settlement agreement when on April 16,
1998, he received an appraisal with an overall rating of "unacceptable."
Complainant viewed the appraisal as an act of retaliation and breach of
section 2.a. of the agreement, and requested that the agency reinstate
his complaint for further processing.
On May 13, 1998, the Chief EEO Counselor responded to complainant's claim.
The Chief concluded that complainant should instead file a new complaint
regarding the appraisal matter.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
In Baker v. Chicago Fire & Burglary Detection, Inc. 489 F.2d 953, 955
(7th Cir. 1973), the court held that a valid contact must be based upon
consideration where some right, interest, profit or benefit accrues
to one party or some forbearance, detriment, loss or responsibility
is given, suffered, or undertaken by the other. Where the promisor
receives no benefit and the promisse suffers no detriment, the whole
transaction is a nudum pactum. Similarly, the Commission has held that
a settlement agreement that was not based upon adequate consideration
was unenforceable. See Collins v. U.S. Postal Service, EEOC Request
No. 05900082 (April 26, 1990).
In the instant case, complainant alleged that the agency failed to comply
with that portion of the settlement agreement which assured complainant
that the agency would "not retaliate against or take any action in
reprisal for the Complainant having exercised his right to file an EEO
complaint and otherwise participate in the EEO process." We find that
the agreement provided complainant with nothing more than that to which he
was already entitled to as a federal employee. Accordingly, he received
no consideration for his agreement to withdraw his complaint. Based on
the foregoing, we find that the settlement agreement is unenforceable.
Therefore, the agency will reinstate the complaint for further processing
from the point processing ceased in accordance with the regulations.
Accordingly, the agency's final decision finding no settlement breach was
improper and is hereby REVERSED. The complaint is REMANDED to the agency
for further processing from the point processing ceased in accordance
with the Order below.
ORDER
Within thirty (30) calendar days of the date that this decision becomes
final, the agency is ORDERED to reinstate complainant's complaint and
to resume processing from the point processing ceased. The agency shall
notify the complainant that it has resumed processing of his complaint.
A copy of the agency's letter notifying complainant of the reinstatement
must be submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (Z1199)
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:
April 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.