0120065113
01-16-2009
Harold L. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Harold L. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120065113
Agency No. 4H-330-0225-99
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 8, 2006, finding that it was
in compliance with the terms of the April 21, 1999 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 was created in two parts. The first part was
handwritten by the parties and the second part was type written and
is described as an "attachment" to the handwritten agreement on this
same matter. The agreements provided that:
(1) Complainant agreed that upon reinstatement, he would strive to
be the best "team player" in the agency;
(2) Complainant agreed to dismiss his EEO complainant. He stated
that there was no Union Grievance associated with this complaint;
(3) The attached agreement represents management's terms for
reinstatement (Exhibit A);
(4) The employee's written request for reinstatement, with the
supporting documentation, will be forwarded to the Employee Workplace
Intervention Analyst (EWIA) for a review.
(5) The EWIA will verify that the complainant has successfully
completed a rehabilitation program for a period of not less than six
(6) months and will verify complainant's employment record.
(6) If the rehabilitation effort was successful, and the complainant
has a satisfactory employment history as he indicates, the file will be
forwarded to the Manager Human Resources for approval.
(7) If approved by the Manager, Human Resources, the complainant will
be reinstated to the next available position for which he is qualified
at the Miami Processing and Distribution Center.
(8) The complainant must meet all the qualifications of the position,
i.e. medical, lifting, experience etc.
(9) If reinstated, the complainant will serve a new probationary
period.
(10) By the signing of this agreement the complainant is giving his
written consent to Waiver of Privacy Act restrictions on disclosure of
records, including medical, treatment, work history or any other records
necessary for the processing of his reinstatement.
(11) The complainant is willing to accept reinstatement on the basis
of continued participation in an EAP-coordinated alcoholism or drug
rehabilitation program.
(12) The complainant is willing to accept reinstatement with the
understanding that future alcohol or drug abuse-related employment
problems may be cause for removal.
(13) It is understood and agreed that neither complainant nor his
representative shall seek or accept any other benefits, fees, or costs
with regard to the settlement of the underlying matters herein, including
back pay and attorney fees from the agency.
(14) The employee is aware that nothing else has been intended or
implied by this settlement.
(15) It is understood between the parties that the Settlement
Agreement is non-precedential and may not be cited for any reason,
including comparison, in any other proceeding in any forum. However,
it may be cited in a subsequent action involving complainant.
The record reveals that complainant submitted a request to be reinstated
with the agency. Complainant submitted documentation showing that he
had complied with the terms of the settlement agreement which included
attending a substance abuse recovery program and steady employment.
Despite this complainant was denied reinstatement. He was told that
based on his criminal record and employment history he was not suitable
for employment.
By letter to the agency dated July 14, 2006, 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 agency failed to reinstate him as agreed upon.
Complainant indicated that he had submitted documentation that showed that
he had complied with all of the requirements of the settlement agreement
but still had not been reinstated. On appeal, complainant requests that
his complaint be reinstated at the point were processing ceased.
In its August 8, 2006 FAD, the agency concluded that in 1999, complainant
had previously alleged that the agency had breached the settlement
agreement by failing to reinstate him. The agency indicated that
it had shown then as in this instance, that it was not in breach of
the settlement agreement. Specifically, the agency maintained that
complainant's documentation was submitted to the Manager of Human
Resources (Manager) as was agreed upon and his file underwent the
same back-ground check that everyone else has to go through. However,
complainant's request was rejected by the Manager due to complainant's
work history and criminal record. The agency argues that it complied
with the stipulations of the agreement in that complainant was afforded
consideration for reinstatement but his reinstatement request was denied
because he was deemed unsuitable for agency employment. Therefore, the
agency maintains that his EEO complaint should not be reinstated.
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).
In the instant case, the Commission finds that the settlement agreement
is void for lack of consideration. We find that the agreement simply
states that complainant's file would be considered for reinstatement.
Specifically, the language indicates that if complainant's rehabilitation
efforts are successful, and he has a satisfactory employment history, the
file will be forwarded to the Manager for approval; and if approved by the
Manager, the complainant will be reinstated to the next available position
at the Miami Processing and Distribution Center for which he is qualified.
We find that this agreement does not provide sufficient consideration to
constitute a valid contract. Generally, as long as some legal detriment is
incurred by each party as part of the bargain, the adequacy or fairness
of the consideration in a settlement agreement is not at issue. 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. U.S. Postal Service, EEOC Appeal No. 01964653 (July 1, 1997);
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)). Here, the agency agreed that complainant
would be sent for the "possible" approval of the Manager. The agency did
not agree to reinstate complainant once he had completed the series of
steps that it required.1 Thus, even if complainant demonstrated to the
agency's satisfaction that he had met the agreement's terms, the agency
is under no contractual duty to do anything. The agency's consideration,
therefore, is illusory.
CONCLUSION
Accordingly, the final agency decision finding no settlement breach
is vacated. We find that the reinstatement agreement is null and void.
The agency is ordered to resume processing complainant's EEO complaint
from the point were processing ceased.
ORDER
To the extent that it has not already done so, the agency is ordered to:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall resume processing of complainant's complaint form
the point processing ceased. The agency shall acknowledge to complainant
that it has reinstated and resumed the processing of his complaint.
(2) The agency shall submit a report regarding the ordered actions
to the Compliance Officer in accordance with the order 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 (M0408)
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 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 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
January 16, 2009
__________________
Date
1 The record shows that complainant's criminal history occurred prior to
the reinstatement agreement. There is no indication that complainant
committed any illegal acts during the time that he was completing
the requirements of the reinstatement agreement or had any employment
issues during that time. Further, the agency states in its answers to
interrogatories that there was at the very least one felon employed at
the agency. Additionally, the agency's handbook EL-312, September 2001,
lists the procedures that are to be followed for using arrest records and
it is unclear whether the handbook was followed. While we agree that
the agency has a right to select the employees that it wants to hire,
we can not support a situation where clearly it appears that the agency
did not, at the time of entering into the settlement agreement intend
to reinstate complainant.
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0120065113
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036