0120073874
12-04-2007
Ornella F. Fuller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ornella F. Fuller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073874
Agency No. 1F-946-0003-07
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated August 29, 2007, finding that it was in compliance with
the terms of the December 6, 2006 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; .405; and .504(b).
On November 3, 2006, complainant initiated contact with an EEO Counselor
alleging that the agency discriminated against her based on disability
(stress) when, on November 5, 2006, management told her that no work
was available and sent her home. The matter was identified as Agency
No. 1F-946-0003-07. In resolution of the claim, complainant and the
agency entered into a settlement agreement dated December 6, 2006,
that provided:
(1) The Agency agrees to accept [complainant's] request for a light duty
assignment and relay such to the appropriate office.
(2) The Agency also agrees to follow the guidelines set forth under
Article 131 in reviewing her request for a light duty assignment. . . .
By signing this agreement, [complainant] withdrawals[sic] any and all
pending complaints.
By informal complaint to the agency dated May 25, 2007, complainant
stated: "I am being discriminated against because work available
but was given to other employees. . . . I have already filed a[n]
E.E.O. previously and . . . management agreed and signed that they would
follow the procedure of giving me work when work became available."
She requested that the agency "take[,] follow and keep the promises they
made and signed" as a resolution to her pre-complaint.
In its August 29, 2007 final decision, the agency concluded that it
did not breach the December 2006 settlement agreement. The agency
stated that, in June 2007, an Agency Manager (S1) offered complainant
a light duty position as a Bulk Mail Clerk that she accepted and is
working currently. The agency added, S1 stated that, prior to June
2007, no light duty work was available within complainant's limitations.
Complainant filed the instant appeal. On appeal, complainant stated that,
in December 2006, the agency agreed to place her in a pay status, but
did not do so until June 2007 although there were positions available.
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 the instant case, we find that consideration or lack thereof
is an issue. The adequacy or fairness of consideration in an
agreement usually is not at issue, so long as the parties incurred
some legal detriment. When a party incurs no legal detriment, the
settlement agreement lacks consideration, and is void. See Terracina
v. Department of Health and Human Services, EEOC Request No. 05910888
(Mar. 11, 1992). To incur a legal detriment, the parties must commit
themselves to do something they were not already obligated to do. See
Morita v. Department of the Air Force, EEOC Request No. 05960450
(December 12, 1997). In the instant matter, the agency agreed to accept
complainant's request for light duty work, relay its acceptance to the
appropriate office, and process the request in accordance with the
collective bargaining agreement in place. In exchange, complainant
agreed to withdraw his complaint at issue. Based on the totality
of the circumstances, the Commission is not persuaded that the agency
incurred a legal detriment when it entered into the settlement agreement.
We find that the agency's required actions did not confer any benefit
to complainant to which she was not already entitled. Accordingly, we
VACATE the agency's decision and REMAND the complaint for reinstatement
from the point processing ceased, consistent with this decision and the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. 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 becomes final, 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.
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 4, 2007
__________________
Date
1 We note that Article 13 refers to a section of the collective bargaining
agreement, regarding "Assignment of Ill or Injured Regular Workforce
Employees," between the agency and the postal union.
??
??
??
??
2
0120073874
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073874