0120083340
01-27-2009
Miguel Arsuaga, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Miguel Arsuaga,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120083340
Agency No. HS06TSA001541
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 22, 2008, finding that it was in
compliance with the terms of the January 13, 2006 settlement agreement
(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.
The Agreement provided, in pertinent part, that complainant:
(1) will be considered for any promotions or detail assignment in
the future in a fair and equitable manner.
By letters to the agency dated October 1, and November 11, 2007,
complainant alleged that the agency was in breach of the Agreement, and
requested that the agency specifically implement its terms. Specifically,
complainant alleged that the agency breached the Agreement when he was
either not selected or not interviewed for a variety of positions.
In its FAD, the agency concluded that it had not breached the Agreement
because that document merely promised to consider complainant for
promotions or details in a fair and equitable manner but did not
promise to select him for any position. The agency further found that
complainant failed to show that he had not been considered in a fair
and equitable manner and that, therefore, the agency was not in breach
of the Agreement.
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).
In Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955
(7th Cir. 1973), the court held that a valid contract must be based upon
consideration where some right, interest, profit, or benefit accrues
to one party or some forbearance, detriment, loss, or responsibility is
given, suffered, or undertaken by the other. Where the promisor receives
no benefit and the promisee suffers no detriment, the whole transaction
is a nudum pactum. See Collins v. United States Postal Service, EEOC
Request No. 05900082 (April 26, 1990) (a settlement agreement that was
not based upon adequate consideration was unenforceable).
In the instant case, pursuant to the Agreement, the agency agreed to
consider complainant for details or promotions in a fair and equitable
manner. Complainant, in turn, agreed to withdraw his EEO complaint.
We find that the agency, in merely agreeing to treat complainant in
accordance with existing statutes and regulations, provided complainant
nothing more than that to which he was already entitled as an employee,
and accordingly, he received no consideration for his agreement to
withdraw his complaint. Based on the foregoing, we find that the
Agreement is unenforceable. Accordingly, the final agency decision
finding no settlement breach is vacated. The Commission hereby voids
the Agreement and remands this case so that the EEO complaint may be
reinstated for further processing in accordance with the Order herein.
ORDER
The agency is ORDERED to resume processing of complainant's complaint from
the point processing ceased within thirty (30) calendar days of the date
this decision becomes final. The agency shall acknowledge to complainant
that it has reinstated and resumed processing of his 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
January 27, 2009
__________________
Date
2
0120083340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083340