0120090970
06-18-2010
Gertrude A. Cooper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Gertrude A. Cooper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120090970
Agency No. 4H-330-0194-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 18, 2008, finding that it was
in compliance with the terms of the May 29, 2008, settlement agreement
(SA). See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); 29 C.F.R. �
1614.405. For the following reasons, the Commission VACATES the FAD.
BACKGROUND
In 2008, complainant sought EEO counselor contact in order to recover
40 hours of annual leave that she was not able to use in late November
2007, due to a last-minute conflict in scheduling. During mediation,
the parties entered into the SA to resolve the matter. By letter dated
September 23, 2008, complainant addressed the agency, contending that
it was in breach of the SA, in that she had agreed to accept half of
the hours lost (20 hours) to be reinstated as administrative leave, but
that no hours had been credited to her as of September 2008. The agency
replied that, although the SA promised to reinstate 20 hours of leave,
plant management refused to do so. The agency proposed that she accept
cash in lieu of the leave. Complainant refused to accept the agency's
check.1
The two relevant portions of the SA, in handwritten paragraphs, state:
2. [Complainant] accepts restoration of 20 (twenty) hours of Annual Leave
with Administrative Leave to be concurred by higher level Management
within 30 days of this Agreement.
3. [Complainant] understands that there is no guarentee (sic) that
higher level of Approval may be meet (sic), however, once approval has
been made [complainant] understands that it may be 2-4 pay periods before
restoration is complete.
The remainder of the SA is typical language found in most settlements,
stating the complainant's acceptance of the terms, management's
agreement, and complainant's agreement to withdraw her informal complaint.
On several pages, the SA includes the statement that "this agreement is
final and binding."2
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.
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 the instant case, there are several reasons why this agreement
cannot stand and was void ab initio. In the first instance, the SA
was not "final and binding" as written, in that there remained an open,
pending matter, i.e., the approval of plant management to restore the
hours to complainant. The SA does not include an alternative plan,
should plant management refuse to do so.3 In the event that plant
management refused to reinstate the leave, the agreement, on its face,
left complainant without consideration in exchange for her agreement to
accept half of the hours sought and not pursue the EEO matter.
A binding agreement requires the exchange of consideration, that is,
a complainant must obtain something of value in exchange for withdrawal
of her/his complaint. McCloud v. USPS, Request No. 05980624 (October
6, 1999). Usually, the Commission will not inquire into the adequacy
or fairness of the consideration in a settlement agreement as long as
some legal detriment is incurred as part of the bargain.4 See Miller
v. Department of the Treasury, EEOC Request No. 05960622 (December 5,
1997). When one of the parties to the contract incurs no legal detriment,
however, the Commission will set aside a settlement agreement for lack
of consideration. Id.; Juhola v. Department of the Army, EEOC Appeal
No. 01934032 (June 30, 1994), citing Terracina v. Department of Health
and Human Services, EEOC Request No. 05910888 (March 11, 1992).
Moreover, we note that the evidence of record does not support the
agency's apparent position that complainant agreed to accept cash in
exchange for the refusal of management to allow restoration of the lost
hours. While her letter on appeal mentions the check, complainant seeks
to reinstate her complaint in her letter to the agency and on appeal.
Our regulations provide two options on review of a SA, that is, we
"may order such compliance or [we] may order that the complaint be
reinstated for further processing from the point processing ceased."
29 C.F.R. � 1614.504(c). After a review of the record in its entirety
and consideration of all statements submitted on appeal, including those
not specifically addressed, it is the decision of the Equal Employment
Opportunity Commission that the SA under review herein is not was never
a valid agreement from its inception. Thus, the SA is void, and the
complaint must be processed from the point at which processing ceased.
CONCLUSION
Accordingly, the final agency decision is VACATED, and the case is
remanded for further action consistent with this decision and the Order
of the Commission, below
ORDER (E0900)
Within thirty (30) calendar days of the date this decision becomes
final, the agency is ORDERED to process the complaint (Agency Complaint
No. 4H-330-0194-08) from the point at which processing ceased and
in accordance with the Commission's regulations. The agency shall
acknowledge to the complainant that it has received the remanded claims
within twenty (20) calendar days of the date this decision becomes final.
Should the agency dismiss the complaint, it must provide complainant
her rights of appeal. Should the agency accept the complaint, or it
is remanded to the agency after an appeal, the agency shall issue the
investigative file and notify complainant of the appropriate rights as
required, unless the matter is otherwise resolved prior to that time in
accordance with the Commission's regulations.
A copy of the agency's letter acknowledging 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
June 18, 2010
Date
1 The record contains a one-page document titled "EEO Settlement
Agreement," signed by a management representative on September 2, 2008,
stating that complainant will accept money instead of the restoration
of leave. The document does not bear complainant's signature.
2 We note that the SA is put together in a haphazard manner; but for
the page numbers written at the bottom, it would be difficult to order
the pages.
3 This raises the question of why the agency did not have an individual
with decision authority present at these negotiations.
4 The Commission will also examine agreements that require the agency
to "treat the complainant fairly," "maintain a safe work environment,"
or similar actions to determine if they meet legal requirements for
an exchange of consideration. Such obligations, standing alone, are
usually too vague to be enforced and, in some cases, call for actions
already required by law.
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0120090970
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090970