Magaly A. Morales, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 6, 2009
0120092890 (E.E.O.C. Nov. 6, 2009)

0120092890

11-06-2009

Magaly A. Morales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Magaly A. Morales,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092890

Agency No. 4H-335-0028-09

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated June 2, 2009, finding that it was in

compliance with the terms of a February 19, 2009 settlement agreement.

See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �

1614.405.

The February 19, 2009 settlement agreement provided, in pertinent part,

that:

It has been mutually agreed by all parties that Route 717 will be modified

to accommodate [complainant's] restriction and to be completed no later

than 3/20/09. If modifications have not been completed by 3/20/09,

[Complainant] will reopen her EEO complaint.

By letter to the agency dated March 23, 2009, complainant alleged

that the agency breached the settlement agreement. Specifically,

complainant alleged that Route 717 had not been modified to accommodate

her restrictions.

In its June 2, 2009 final decision, the agency found no breach.

The agency found that a Manager Customer Services (MCS) stated that she

has been unable to comply with the timeframe identified in the above

referenced provision, but that she expects the route modification to

be completed by June 22, 2009; and in the interim, complainant had been

provided work within her restrictions.

On appeal, complainant argues "as of this date 8-29-09 the accommodation

has not been done."

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).

The Commission finds that complainant received no consideration from

the agency in the settlement agreement and that the agreement is void.

Generally, the adequacy or fairness of the consideration in a settlement

agreement is not at issue, so long as some legal detriment is incurred as

part of the bargain. However, when one of the contracting parties incurs

no legal detriment, the provisions of the agreement will be set aside

for lack of consideration. See MacNair v. United States 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 Service, EEOC Request No. 05910888 (March 11, 1992)).

Here, we find that the agreement fails to provide complainant with any

significant benefit beyond what she was otherwise entitled to as an agency

employee: the agency would modify Route 717 to accommodate complainant's

restriction no later than March 20, 2009 but if the modifications are

not completed by March 20, 2009, complainant would be allowed to reopen

her EEO complaint. Further, we remind the agency that it has an ongoing

duty to provide reasonable accommodation irrespective of the provisions

of the agreement.

Accordingly, the agency's decision finding that it was in compliance

with the terms of the settlement agreement is VACATED. The matter is

REMANDED to the agency for reinstatement of complainant's underlying

EEO complaint from the point where processing ceased, in accordance with

the ORDER below.

ORDER

The agency is ORDERED to resume processing of complainant's underlying

complaint from the point where processing ceased. The agency shall

acknowledge to complainant that it has reinstated and resumed processing

of complainant's complaint.

A copy of the agency letter of acknowledgement 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

November 6, 2009

__________________

Date

2

0120092890

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120092890