01a44296
07-07-2005
Maria D. Acevedo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maria D. Acevedo v. United States Postal Service
01A44296
July 7, 2005
.
Maria D. Acevedo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44296
Agency No. 4G-780-0255-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated April 21, 2004, finding that it was in
compliance with the terms of the September 4, 2002 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
[Complainant] will not be discriminated against on the basis of age,
disability or retaliation in accordance with Title 7.
According to a letter dated May 26, 2004, complainant alleged that the she
filed a breach of her settlement agreement with the agency in May 2003.
Complainant alleged that she has been subjected to ongoing reprisal and
harassment. Complainant cited the following incidents that she believed
to be a breach of the settlement agreement signed on September 4, 2002:
In September 2002, complainant was being bypassed for overtime and
Supervisor A informed complainant that she was being taken off the
Overtime Desired List (OTDL) by the Manager of Distribution Operations.
In October 2002, Supervisor B tried to move complainant from her assigned
machine even though complainant required accommodation.
In November 2002, complainant was issued a Letter of Warning.
On an unspecified date in 2003, Supervisor C gave complainant ugly looks.
.
In a letter dated April 21, 2004, the agency concluded that the September
4, 2002 settlement agreement had not been breached. The agency stated
that the settlement agreement was totally void of any language that
mentions overtime, being moved to another machine, discipline or ugly
looks.
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,
EEC 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, EEC 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, EEC 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, we find the settlement agreement unenforceable for
lack of consideration. 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, EEC Request No. 05990808 (September 26, 1997)
(citing Juhola v. Department of the Army, EEC Appeal No. 01934032 (June
30, 1994) and Terracina v. Department of Health and Human Services,
EEC Request No. 05910888 (March 11, 1992)).
The document signed by both parties on September 4, 2002, contains
no consideration from the agency. We find that the agency, in merely
agreeing to treat complainant in accordance with existing laws, rules,
and policies, provided complainant nothing more than that to which she was
entitled as an employee, and accordingly, she received no consideration
for her agreement to withdraw her EEO matter. Based on the foregoing,
we find that the settlement agreement is void. The agency should
reinstate complainant's claims for further processing from the point
processing ceased.
With respect to the claim of ongoing reprisal and harassment, the
Commission finds that this matter concerns subsequent acts of alleged
discrimination. Such issues should be addressed as separate complaints of
discrimination, not as settlement breach issues. 29 C.F.R. � 1614.504(c).
If complainant wishes to pursue the alleged reprisal and harassment as a
separate complaint of discrimination, she must contact an EEO counselor
within fifteen (15) days of the date she receives this decision.
If complainant makes such contact with an EEO Counselor, the date she
first raised the reprisal issue in her breach claim (unless she made
prior EEO Counselor contact) shall be considered the date complainant
first contacted an EEO Counselor, for timeliness purposes. Cf. Qatsha
v. Department of the Navy, EEC Request No. 05970201 (January 16, 1998).
Accordingly, we VACATE the agency's final decision finding that no
breach of the settlement agreement occurred. We REMAND the matter for
further processing at the point where processing previously ceased,
as directed herein.
ORDER
The agency shall reinstate the settled matter and resume processing
the matter from the point processing previously ceased pursuant to
29 C.F.R. Part 1614 Regulations. The agency shall, within 30 days of
the date this decision becomes final, notify complainant that it has
reinstated the settled matter. A copy of the reinstatement letter to
complainant must be sent to the Compliance Officer referenced herein.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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 (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
July 7, 2005
__________________
Date