0120103470
01-07-2011
Nancy G. Jolly, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nancy G. Jolly,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103470
Agency No. 2003-0104-2010102059
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated August 9, 2010, finding that it was in compliance with the terms of the June 8, 2010 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
The settlement agreement provided, in pertinent part, the following.
(2) If complainant feels that she is inadequately trained to complete an assigned task, she shall so notify her first line supervisor. The first line supervisor, along with the input from the complainant will identify formal training that will adequately prepare complainant to complete the assigned tasks. Approval of the identified training will be done in accordance with the Agency's training policy through use of the complainant's [individual development plan]. In addition, if complainant feels that she requires informal training or clarification from her first line supervisor to complete an assigned task, she shall request such assistance in accordance with the meeting provisions below.
By letter to the Agency dated June 24, 2010, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant also alleged that the Agency discriminated against her based on reprisal for prior EEO activity when it denied her request for four training courses scheduled between July and September 2010.
In its August 9, 2010 final decision, the Agency concluded that the June 8 settlement agreement is void for lack of consideration. Specifically, the Agency stated that "the terms of the provision set forth in paragraph (2) of the settlement agreement do not impose a legal detriment on the Agency and are too vague or ambiguous to be enforced." The Agency stated that the terms do not set forth specific training but indicate that Complainant and her supervisor will identify training that will adequately prepare Complainant to complete assigned tasks. The Agency indicated that paragraph (2) provides nothing more than what Complainant is already entitled as an employee. The Agency stated that it would reinstate the instant underlying complaint from the point processing ceased, and that the subsequent claim of reprisal can be processed as a separate claim if Complainant wishes to pursue it.
The instant appeal from Complainant followed, without comment as to breach or reprisal. In opposition to Complainant's appeal, the Agency stated that Complainant did not submit an appellate brief to support her allegations.
ANALYSIS AND FINDINGS
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. Dep't 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. Dep't 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. U.S. Postal Serv., 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).
Upon review of the record before us, we agree with the Agency that the agreement is void for lack of consideration and that the underlying EEO complaint (Agency No. 2003-0104-2010102059) should be reinstated for processing from the point that it ceased. Where the promisor receives no benefit and the promisee suffers no detriment, the whole transaction is a nudum pactum. See Collins v. U. S. Postal Service, EEOC Request No. 05900082 (Apr. 26, 1990) (a settlement agreement that was not based upon adequate consideration was unenforceable). Further, we find that Complainant alleged further discrimination based on reprisal in violation of the settlement agreement and that such matter should be processed as a separate complaint. 29 C.F.R. � 1614.504(c).
Accordingly, we AFFIRM the final agency decision. We REMAND the matter to the Agency for further processing consistent with this decision and the Order below.
ORDER
The agency shall resume processing of the matter raised in Agency No. 2003-0104-2010102059, from the point where processing previously ceased pursuant to Part 1614 Regulations. The Agency shall, within 30 days of the date this decision becomes final, acknowledge to Complainant that it has reinstated and resumed processing of the settled matter.
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 (K0610)
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 (M0610)
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 (R0610)
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 (Z0610)
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 7, 2011______
Date
2
0120103470
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103470