01A15084_r
12-18-2001
Irene Diaz v. United States Postal Service
01A15084
December 18, 2001
.
Irene Diaz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15084
Agency No. 4-A-070-0110-01
DECISION
Complainant appealed to this Commission from the agency's August 3,
2001 final decision finding that it was in compliance with the terms of
the April 17, 2001 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) [Complainant] and [management] agree that they would like to continue
to work together in a mutually respectful and professional manner,
i.e. making requests politely and responding to inquiries.
(3) If [complainant] disagrees with an interpretation of a[n] [agency]
rule or regulation, she and [management] �agree to disagree� and
[complainant] may pursue a grievance. In the interim [complainant]
will follow her supervisor's instruction unless it is unsafe.
(4) Management agrees to continue to apply all [agency] rules and
regulations uniformly.
By letter dated June 5, 2001, complainant alleged breach of the
agreement. Specifically, complainant claimed that management harassed
her by subjecting her to increased scrutiny, �glaring� at her, �barking�
orders at her to humiliate her in front of her coworkers, yelling at
her about needing too much assistance, and otherwise harassing her.
In its final decision, the agency noted that complainant had complained
about prior supervisors, had problems with authority, and did not have
any hostile actions taken against her. Therefore, the agency found no
breach of the settlement agreement.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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).
One requirement to establish a valid contract is consideration from
both parties. Namely, each party must incur some legal detriment in
exchange for the other party's promise. Generally, the adequacy or
fairness of consideration is not addressed, so long as some legal
detriment is incurred in exchange for the bargain. If one party
incurs no legal detriment, however, then the Commission may render the
agreement void for lack of consideration. See DuBois v. Social Security
Administration, EEOC Request No. 05990808 (September 26, 1997) (citing
Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30,
1994) and Terracina v. Department of Health and Human Services, EEOC
Request No. 05910888 (March 11, 1992)).
Complainant agreed to withdraw her underlying complaint, but the agency
obligated itself to nothing. The agency's concessions do not include
any new burden. Therefore, the Commission finds that no valid contract
exists, and complainant's underlying complaint must be reinstated for
further processing. Further, the agency should have processed claims of
breach involving subsequent acts of harassment or reprisal as new claims
of discrimination, not as a claim of breach of the settlement agreement.
See 29 C.F.R. � 1614.504(c). If complainant wishes to pursue these
claims as a new complaint of discrimination, she must contact an EEO
Counselor within fifteen (15) calendar days of the date she receives
this decision.<1>
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the underlying
complaint is REMANDED for further processing.
ORDER
The agency is ordered to resume the processing of complainant's underlying
complaint from the point processing ceased. Within thirty (30) calendar
days of the date this decision becomes final, the agency must notify
complainant of the reinstatement of her complaint, and inform her of
its status. The agency must provide the Compliance Officer with a copy
of this letter, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2001
__________________
Date
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
______________________________
1For purposes of timeliness, the agency should consider complainant's
claim of breach as her initial EEO Counselor contact.