0120120741
11-15-2012
Kathy A. Hudson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Kathy A. Hudson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120120741
Agency No. 4G-700-0106-11
DECISION
On November 26, 2011, Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 27, 2011, 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 City Letter Carrier at the Agency's Istrouma Station in Baton Rouge, Louisiana. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 4, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided that:
Management will attempt to delay the scheduled route examination scheduled for the week of May 9, 2011, on Route 524 until [Complainant] return[s] to duty on or after May 17, 2011, if possible. Management will contact injury compensation concerning [Complainant's] release to full duty based on Rt. 524 prior to changes implemented on April 2, 2011, and her ability to receive another CA-17 to complete based on the changes to Rt. 524 on April 2, 2011. Management will review the delivery changes from previous Rt. 524 and provide auxiliary assistance of 1.50-2.0 hours for the new park and loop changes if that is found to be the case and supplement [Complainant] with deliveries within her restrictions such as curbline, dismounts, and/or apartments.
By letter to the Agency dated September 24, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that she has been forced to use leave time upon completion of work to avoid just sitting around in the work station to compete an eight hour work day. She noted that Management has not provided Complainant with auxiliary assistance of up to 2 hours as stated in the last sentence of the settlement agreement. Complainant indicated that Management is refusing to comply with agreement.
The Agency investigated the claim of breach. In its October 27, 2011 FAD, the Agency concluded that it did not breach the settlement agreement. The decision noted that the agreement allowed for Management to supplement Complainant's deliveries within her restrictions. The Agency stated that there was no guarantee that Management would provide Complainant with a complete eight hour day of work. Further, due to the changes in Complainant's limitations, the Agency determined that it provided Complainant with work within her restrictions. Therefore, the Agency concluded that it did not breach the settlement agreement.
This appeal followed. On appeal, Complainant asserted that her route was modified removing two hours of work. As such, she felt it was fair for her to be given two hours of work back for the two hours taken away.
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).
The Commission finds that the instant agreement is void for lack of consideration. Generally, the adequacy or fairness of the consideration in 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 Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992).
We note that the settlement agreement merely required that the Agency consider providing Complainant with work within her limitations. As such, we determine that the settlement agreement provided Complainant nothing more than that to which she was already entitled as an employee, so she received no consideration with respect to the settlement agreement. See Brown v. U.S. Postal Serv., Appeal No. 0120090822 (April 1, 2009) (Agency agreement to address Complainant "as all other employees in a professional matter" lacked consideration). Based on the foregoing, the settlement agreement is unenforceable and is void for lack of consideration. Therefore, we determine that Complainant's original complaint shall be reinstated.
In addition, we note that Complainant alleged that she was denied a reasonable accommodation when she was denied work within her limitations in September 2011. That claim should be included as an accepted amendment to Complainant's underlying complaint of discrimination when processing is resumed.
CONCLUSION
Accordingly, the Commission VACATES the Agency's letter of determination. The Commission hereby voids the settlement agreement and REMANDS this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to resume the processing of the settled complaint, as amended, from the point processing ceased pursuant to 29 C.F.R. Part 1614. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall notify Complainant in writing that it has reinstated her EEO complaint. The Agency must provide a copy of this notice 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
November 15, 2012
__________________
Date
2
0120120741
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120741