Gertrude A. Cooper, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionJun 18, 2010
0120090970 (E.E.O.C. Jun. 18, 2010)

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

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0120090970