0120072858
09-17-2007
Lexie L. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lexie L. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072858
Agency No. 4H370002506
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 1, 2007, finding that it was in
compliance with the terms of the December 13, 2005, settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); 29 C.F.R. � 1614.405.
For the reasons that follow, we find that the SA is void for lack of
consideration.
The settlement agreement (SA), arrived at during the counseling process,
provided (1) that complainant be treated with dignity and respect the
same as other employees; (2) that complainant not be retaliated against
for filing the instant complaint; (3) that Manager SP will ride with
complainant and explain to complainant her deficiencies so she can improve
by constructive feedback; and (4) that complainant will be recognized as
a proficient employee. By letter to the agency dated January 22, 2007,
complainant alleged that the agency was in breach of the SA, because
the agency changed her reporting time in violation of Part 1, that
she be treated with dignity and respect; she also asserted that, given
her length of service, she should be given an easier route assignment.
The agency responded on May 1, 2007, concluding that it had not breached
the SA. Upon investigation, the agency found that the reporting time
change affected all employees, that Manager SP explained the reasons
to complainant on several occasions in a respectful manner, and that he
could not assign her an easy route as she desired.
In her appeal statement, complainant stated that Manager SP did not ride
with her and that the Postmaster did but gave her no feedback. Also, she
asserted that Manager SP does not recognize her as a proficient employee.
As a matter of policy, the Commission encourages settlement of EEO
complaints at any stage of processing. See 29 C.F.R. � 1614.603.1 A
settlement agreement reached in the EEO process is a contract between
the parties, and the principles of contract law apply thereto. McCloud
v. USPS, EEOC Request No. 05980624 (October 6, 1999). Generally, the
Commission will not inquire into a settlement agreement, but where a
complainant alleges a breach, the Commission's initial inquiry is to
consider whether there exists a valid settlement agreement to enforce.
Miller v. Department of the Treasury, EEOC Request No. 05960622 (December
5, 1997). A binding agreement requires the exchange of consideration,
that is, a complainant must obtain something of value in exchange
for the withdrawal of her/his complaint, and, as long as both parties
incurred some legal detriment by committing themselves to do something
they were not already obligated to do, a settlement agreement will not
lack consideration. See McCloud v. USPS, supra; Morita v. Department
of the Air Force, EEOC Request No. 05960450 (December 2, 1997); O'Brien
v. USPS, EEOC Request No. 05920560 (February 11, 1993).
A binding agreement requires the exchange of some consideration, that is,
a complainant must obtain something of value in exchange for withdrawal
of her/his complaint. In this matter, the agency incurred no loss under
the SA, while complainant, on the other hand, received no benefit that
she was not entitled to as an employee of the agency. In so finding, we
note that Parts (1), (2), and (4) do not obligate the agency to do more
than what it is obliged to do under our regulations and its contract.
See 29 C.F.R. � 1614.101. The Commission considers that agreements that
contain illusory promises are void.
Moreover, the Commission has held that provisions that require the
agency to treat a complainant with respect and dignity, or "the same
as other employees" are too vague to be enforceable. See Strickland
v. USPS, EEOC Appeal No. 01A20575 (February 27, 2002). As to Part (3),
that Manager SP will ride with complainant and explain her deficiencies,
this obligation is no more than any supervisor should offer to employees,
if s/he has been critical of that employee's performance. In addition,
we note that complainant stated that Manager SP did not "ride" with
her but that the Postmaster did, without feedback; the agency has not
explained or rebutted complainant's assertion.
Where an agreement is void and, therefore, unenforceable, in general,
the parties are returned to the position they occupied before the
SA was entered into. For that reason, and having found the SA void,
we find that a return to the counseling process is appropriate, i.e.,
the point where the processing of complainant's complaint ended.
CONCLUSION
Accordingly, the settlement agreement is set aside; and the agency's
decision is reversed. The agency is directed to comply with the Order
below.
ORDER
Within twenty (20) calendar days of the date that this decision becomes
final, the agency shall provide complainant with an appointment with
an agency EEO counselor concerning the claims set forth in her initial
request for EEO counseling. The date of initial EEO counselor contact
will be the date of complainant's original counselor contact in 2005.
A copy of the agency=s letter of setting her counseling appointment must
be sent to the Compliance Officer 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
____9/17/07______________
Date
1 We note that the SA does not fully comply with the regulation, in that,
it does not identify the claims resolved.
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0120072858
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072858