0120143045
01-08-2016
Mckinley P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mckinley P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120143045
Agency No. 4H-390-0093-07
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated August 8, 2014, finding that it was in compliance with the terms of the May 1, 2009 settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
To settle claims of employment discrimination pending before an EEOC Administrative Judge, Complainant and the Agency entered into a settlement agreement on May 1, 2009. The settlement agreement provided, in pertinent part, that:
5. Nothing in this Agreement shall affect the Complainant's right to file, or pursue, a grievance related to the subject matter of his complaint, or for any future claims that he may have pursuant to the applicable collective bargaining agreement. Should a contractual grievance be pursued regarding the same subject matter that this settlement addresses, however, this paragraph does not prevent the Postal Service from raising in the grievance-arbitration procedure the benefits the Appellant has received from this settlement as a basis to avoid, or at least limit, any remedy that he might be otherwise entitled to under the contractual grievance.2
By e-mail to the Agency dated June 25, 2014, Complainant alleged that the Labor Relations Specialist breached provision 5 of the settlement agreement. Specifically, Complainant stated "per Section 5, I filed a grievance as the settlement provides but now the USPS states I did not have the right to file the grievance. The USPS is in violation of 29 CFR 1615.504." Complainant sought to reinstate the processing of his underlying complaint.
In its August 8, 2014 final decision, the Agency found no breach. The Agency determined that provision 5 was included in the agreement to remind Complainant of his entitled right to file a grievance on the subject matter of his complaint or for any other future claim for that matter. Specifically, the Agency stated that the core point of the subject provision was to remind Complainant of his right to file a grievance on the matter and that Agency management could address his settlement benefits in a grievance-arbitration procedure.
The instant appeal followed.
ANALYSIS AND FINDINGS
Generally, the adequacy or fairness of the consideration of a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Service, EEOC Appeal No. 0194653 (July 1, 1997); Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 10, 1994) (citing Terracina v. Department of Human and Health Services, EEOC Appeal No. 05910888 (March 11, 1992)).
In this case, a fair reading of provision 5 shows that it created no obligation on the part of the Agency, but simply clarified that the settlement agreement only resolved matters raised in the EEO complaint process and did not apply to grievances brought under the collective bargaining agreement on the same issues. In other words, provision 5 made clear that Complainant was not waiving his right to pursue matters in the grievance process.
It appears that provision 5 may be void for lack of consideration as it fails to confer any benefit to the Complainant that he was not already entitled to as a matter of law. However, given that other consideration was exchanged through other provisions of the agreement, we find that the settlement agreement is not invalid. However, the record evidence does not establish that the Agency breached the language of the provision as there is no indication that it refused to process a grievance brought by Complainant on the grounds that he had waived his right to grieve the matter in the May 1, 2009 settlement agreement.
The Agency's final decision finding no breach of the May 1, 2009 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 8, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The settlement agreement also provides for the Agency to give Complainant 80 hours of administrative leave; pay Complainant a lump sum payment of $1,000; and change Complainant's seniority date from August 18, 2006 to November 27, 2004. These provisions are not at issue in the instant case.
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