Nicol K.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Oct 31, 2018

EEOC Appeal No. 0120172733 (E.E.O.C. Oct. 31, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Nicol K,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120172733

Agency No. 4G330010017

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a Final Determination (FAD) by the Agency dated July 6, 2017, finding
that it was in compliance with the terms of the 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

At the time of events giving rise to this complaint, Complainant worked as a Carrier at the
Agency’s Post Office facility in Miami, Florida.

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On March 8, 2017, Complainant
and the Agency entered into a settlement agreement (Agreement) to resolve the matter. The
Agreement provided, in pertinent part, that:

(1) Management agrees to request a route inspection from Operations Support.

(2) Management agrees to return copies of 4584's [sic] conducted on Counselee.

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.
0120172733

2
(3) Management and Counselee agree to communicate professionally with each other.

By letter to the Agency dated June 19, 2017, 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 failed to conduct a route inspection as required.

In its July 6, 2017 FAD, the Agency concluded there was no breach of the Agreement.
Specifically, the Agency found that terms 2 and 3 of the Agreement were void for lack of
consideration. With regard to term 1, the Agency found that the Agency attempted to conduct a
route inspection but that this was blocked by a grievance filed by the union and issued on April
17, 2017. The Agency further found that the Agreement required only that Management request
such a route inspection, there was no guarantee that a route inspection would actually be carried
out. Because Management did in fact request such an inspection, the Agency finds, there was no
breach of the Agreement, notwithstanding the fact such an inspection was never carried out.

ANALYSIS

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 Def., 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).

In the instant case, with regard to clauses 2 and 3 of the Agreement, we agree with the Agency’s
finding that they provided Complainant with nothing beyond that to which she was already
entitled and hence are void lack of consideration. When a settlement agreement lacks adequate
consideration, it is unenforceable. See Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990). Generally, the adequacy or fairness of the consideration in a
settlement agreement is not at issue, if some legal detriment is incurred as part of the bargain.
When, however, one of the contracting parties incurs no legal detriment, the settlement
agreement will be set aside for lack of consideration. MacNair v. United States Postal Service,
EEOC Appeal No. 01964653 (July 1, 1997). Because terms 2 and 3 provide no consideration, we
find they are void.

0120172733

3
We further find that clause 1 is similarly void for lack of consideration. That clause merely
committed the Agency to “requesting” a route inspection, it made no guarantee that any route
inspection would actually occur. Such a request imposed no legal detriment on the Agency,
while in exchange, Complainant surrendered her right to pursue her complaint. Because the
Agency incurred no legal detriment for any of the clauses of the Agreement, we find the entire
Agreement void. We further find that Complainant’s original claim(s) should be reinstated and
the Agency should resume processing of the claims where processing ceased.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REVERSE the FAD and REMAND the claims for further
processing in according with this decision and the Order below.

ORDER (E0618)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision was issued. The Agency shall
issue to Complainant a copy of the investigative file and also shall notify Complainant of the
appropriate rights within one hundred fifty (150) calendar days of the date this decision was
issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of
receipt of Complainant’s request.

As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)

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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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).
0120172733

4
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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).

0120172733 5
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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
your appeal with the Commission, until such time as the Agency issues its final decision on your
complaint. 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
October 31, 2018
Date