Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120150588 Agency No. 1K231005414 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated October 10, 2014, finding that it was in compliance with the terms of an August 3, 2014 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 3, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The August 3, 2014 settlement agreement provided that: [The Operations Support Specialist ("OSS")] agrees to research [Complainant's] personnel record to explore if [Complainant's] file should indicate that she is rehireable by the Agency. The OSS agrees to clear [Complainant's] record to indicate that she is rehireable if what the [union representative] and [Complainant] says is true. The OSS agrees to do this with the next 30 days of signing this agreement. By letter to the Agency dated September 4, 2014, Complainant alleged breach of the agreement, and requested that the Agency implement its terms. Specifically, Complainant alleges that the agreement stated that she would be rehired, or at the least, placed first on the list of those to be hired, and that the Agency will purge her personnel record of anything negative. Complainant alleged that none of these provisions were followed through on. In its October 10, 2014 FAD, the Agency found that it had complied with the affirmative obligations identified above. The instant appeal followed. On appeal, Complainant contends that the settlement agreement was missing several terms. Complainant also contends that she was not aware that the agreement was a formal settlement agreement. Complainant contends that she believed the agreement was only supposed to allow the OSS to investigate whether or not she could return to work. Complainant is seeking a reversal of the Agency's decision and a chance to have a hearing and/or a chance to file a formal complaint. 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). 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, 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. United States Postal Service. EEOC Appeal No. 01964653 (July 1, 1997). Also, a settlement agreement that is too vague to enforce is invalid. See Bibb-Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009). In the instant case, the settlement is comprised of a sole provision. This provision requires the OSS to research Complainant's personnel record to see if Complainant is eligible for rehire. The provision also notes that if the OSS is able to confirm Complainant's eligibility, than the OSS will agree to clear Complainant's record and to indicate Complainant is eligible. The agreement also contains a statement regarding whether the OSS will be able to clear Complainant's record based a union representative and Complainant's statements, what or when those statements were made is unclear, i.e. "if what [the union representative] and [Complainant] says is true." The Commission finds provision to be lacking in 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, 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. United States Postal Service. EEOC Appeal No. 01964653 (July 1, 1997). Also, a settlement agreement that is too vague to enforce is invalid. See Bibb-Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009). Applying these legal principles, we find that the instant agreement is invalid due to lack of consideration. In the sole provision, the Agency does not incur any legal detriment. An examination of this provision reveals that it is predicated upon generalizations and contingencies (Agency official will explore and research to determine Complainant's potential for rehire). The Agency's decision finding no breach is REVERSED. The settlement agreement is voided and the case is REMANDED to the Agency so the underlying EEO matter may be reinstated for further processing in accordance with the ORDER below. ORDER The Agency is ordered to resume the processing of the underlying settled matters from the point processing cease pursuant to 29 C.F.R. Part 1614. Within thirty (30) days of the date this decision becomes final, the Agency shall notify Complainant in writing that it has reinstated his 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), at 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 (S0610) 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. 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 (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 April 14, 2015 __________________ Date 2 0120150588 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120150588