01992250
05-16-2000
Herbert Kinard, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Herbert Kinard, )
Complainant, )
)
v. ) Appeal No. 01992250
) Agency No. AL900990350
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's January 11, 1999 letter of
determination dismissing Complainant's breach of settlement agreement
claim, was not proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,660 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.504).<1>
On November 5, 1997, complainant filed a formal complaint, claiming that
he was the victim of unlawful employment discrimination on the bases of
race and age when, on August 18, 1997, he was shoved while using a meat
slicer, thereby having his health and well being placed in jeopardy.
On April 10, 1998, the agency accepted for investigation the matter that
was the subject of the complaint that complainant filed on November 5,
1997.
The record shows that on May 1, 1998, complainant and the agency reached
a settlement agreement which provided, inter alia, that: (a) the agency
would conduct an investigation of complainant's EEO complaint and assign
an investigator for said purpose; (b) military and civilian employees
would be interviewed; (c) the investigator would provide a report,
including a recommendation; (d) an agency entity identified as �the
3rd SPTG/CC� would make a decision concerning any appropriate action
that would need to be made as a result of the investigation; and, (e)
the 3rd SPTG/CC would provide to complainant,�in writing, the results
of the investigation in regard to the issue of the complaint�.
On November 20, 1998, the 3rd SPTG/CC informed complainant that a Report
of Investigation (ROI), indicated that reasonable evidence did not
exist to show he had been discriminated against, and that �no further
action is required in this action�. Complainant was also advised that
�insufficient evidence exists to find discrimination by a preponderance
of the evidence�.
By letter dated December 21, 1998, complainant claimed that the agreement
had been breached because the investigation failed to consider whether
a �prima facie� case had been established.
The regulation set forth at 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. If the complainant believes that the agency has failed to comply
with the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
Settlement agreements are contracts between the complainant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 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 contract 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 promisee 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. USPS, EEOC Request No. 05900082
(April 26, 1990).
The settlement agreement in the instant case provided for an investigation
of complainant's EEO complaint, a written report to complainant
concerning the results of the investigation and �appropriate action
that needs to be taken as a result of the investigation�. We find that
the agreement provided complainant with nothing more than that to which
he was entitled as party to an EEO complaint whose complaint has been
accepted for investigation. 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
The agency, within thirty (30) calendar days of the date this decision
becomes final, 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 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:
May 16, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.