0120101063
06-03-2010
Doris M. Marbley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Doris M. Marbley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120101063
Agency No. 1J531006209
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 7, 2009, finding that it
was in compliance with the terms of the September 18, 2009 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) Parties acknowledge that ELM Sections:
665.16 Behavior and Personal Habits
665.23 Discrimination
665.24 Violent and/or Threatening Behavior
Apply to all employees and management will abide by these
regulations.
(2) [Supervisor] will be fair and equitable to all employees with
regard to work performance and apply rules to everyone in the same way.
(3) [Supervisor] will attempt to explain why she is asking
[complainant] to do tasks outside of her normal job description when
possible.
By letter to the agency dated October 19, 2009, 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, on September 30, 2009, the Supervisor had a doll that
had pins sticking in it and shaking the doll behind her shoulder when
complainant passed her. In addition, on October 15, 2009, complainant
was "given a day in court" as a form of discipline. Complainant alleged
that these events constituted breach of the settlement agreement.
In its December 7, 2009 FAD, the agency concluded that complainant failed
to show that the Supervisor's actions constituted breach of the settlement
agreement. It noted that the Supervisor provided an affidavit in which
she explained that the doll has been her good luck charm and that she
has had it for 20 years. Further, the Supervisor explained the "day in
court" disciplinary action. Based on the explanation by the Supervisor,
the agency determined that it did not breach the settlement agreement.
This appeal followed. On appeal, complainant provided statements
from individuals supporting complainant as a hard working employee
and discussing the issues complainant has with management. The agency
responded by noting that the events raised in complainant's claim of
breach constituted new claims of discrimination and should be processed
as such, rather than a claim of breach.
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).
The plain meaning rule, however, loses its relevance when a settlement
agreement lacks adequate consideration because such agreements are
unenforceable. See Collins v. United States Postal Serv., EEOC Request
No. 05900082 (April 26, 1990) (a settlement agreement that was not 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 Serv., EEOC Appeal No. 01964653 (July 1, 1997).
In the instant case, the Supervisor merely agreed to abide by the agency's
rules and to be fair and equitable to all employees with regard to work
performance and apply rules to everyone in the same way. In addition,
the Supervisor is to attempt to explain why she is asking complainant to
do tasks outside of her normal job description. Such provisions provide
complainant nothing more than that to which she was already entitled as an
employee, so she received no consideration with respect to the settlement
agreement. See Brown v. United States Postal Serv., Appeal No. 0120090822
(April 1, 2009) (agency agreement to address complainant "as all other
employees in a professional matter" lacked consideration). Based on the
foregoing, the settlement agreement is unenforceable and is void for lack
of consideration. Therefore, the Commission finds that complainant's
original complaint shall be reinstated. The events raised in support
of complainant's claim of breach should be included in the original
complaint.
CONCLUSION
Accordingly, the Commission VACATES the agency's letter of
determination. The Commission hereby voids the settlement agreement
and REMANDS this case so that the EEO complaint may be reinstated for
further processing in accordance with the ORDER below.
ORDER
The agency is ordered to resume the processing of the settled matter
from the point processing ceased pursuant to 29 C.F.R. Part 1614. Within
thirty (30) calendar days of the date this decision becomes final,
the agency shall notify complainant in writing that it has reinstated
her EEO complaint. The agency must provide a copy of this notice to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 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
June 3, 2010
__________________
Date
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0120101063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101063