U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willa B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120170768 Agency No. 1K-302-0043-16 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated November 10, 2016, finding that it complied with the terms of a June 22, 2016 settlement agreement. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Mailhandler at the Agency's Peachtree Processing & Distribution Center in Atlanta, Georgia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On June 22, 2016, Complainant and the Agency entered into a settlement agreement to resolve the above matter. The June 22, 2016 settlement agreement provided that: (1) The offer of Modified Assignment (Limited Duty) dated May 13, 2016 is rescinded immediately. (2) [Complainant] will submit a written request for a light duty assignment. The duties assigned to [Complainant] will be determined based on her medical restrictions. MDO [W] will provide [Complainant] the appropriate Light Duty Request form by COB today. (3) MDO [W] will provide [Complainant] a written light duty assignment offer with a reporting time of 7:00 a.m. with duties accommodating [Complainant's] current medical restrictions. This assignment will be modified as needed to meet [Complainant's] medical restrictions and available work to meet the needs of the Postal Service. (4) [Complainant] understands leave requested under OWCP LWOP/IOD/OJI etc. will not be approved now that DOL-OWCP has deemed she no longer has any remaining residuals for her accepted work related medical condition. (5) All parties understand if [Complainant's] current appeal to DOL-OWCP is successful and DOL-OWCP reopens her OWCP claim, [Complainant] will then submit 3971s for leave related to her accepted claim in accordance with Injury Compensation USPS guidelines. (6) [Complainant] and MDO [W] will meet in no more than ten calendar days from the date this agreement is signed to finalize how [Complainant's] time will be handled to accommodate the doctor's restriction of [Complainant] "is to stretch 15 minutes every hour." By a pre-complaint counseling form dated July 24, 2016, Complainant alleged breach when: "On 7-13-16 8:00 a.m. [MDO-W] came into rewrap told me I had to clock out and go home and get in touch with DRAC. I asked 'What was DRAC?' He didn't know what it stood for but he gave me a phone number. I asked about our agreement. He said 'There are no light duty jobs in the District.'" According to the Agency, Complainant requested that the Agency reinstate her underlying EEO complaint. In its final decision, the Agency found no breach. According to the Agency, Complainant was sent home and not allowed to work from July 13, 2016 to August 23, 2016. Complainant was later paid for July 13 -17, 2016. The Agency noted that July 18 and 19, 2016, were her non-scheduled days. Complainant provided a doctor's note stating that she was incapacitated and unable to work for thirty days beginning on July 19, 2016, and the Agency was not obligated to pay her for this time period. The Agency therefore determined that the payment for July 13-17, 2016 'cured' the alleged violation of the settlement. Complainant filed the instant appeal. 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 plain meaning rule, however, loses its relevance when a settlement agreement lacks adequate consideration because such agreements are unenforceable. Collins v. U.S. Postal Serv., EEOC Request No. 05900082 (April 26, 1990). A valid contract must be based upon consideration where some right, interest, profit or benefit accrues to one party or some forbearance, detriment, loss or responsibility is given, suffered, or undertaken by the other. Id. Where the promisor receives no benefit and the promisee suffers no detriment, the whole transaction is a nudum pactum. Id., citing Baker v. Chicago Fire and Burglary Detection, Inc., 489 F.2d 953, 955 (7th Cir. 1973). Thus, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See Macair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997). In the instant case, Complainant agreed to "submit a request for a light duty assignment" and the Agency would assign duties "based on her medical restrictions" (provision (2)). Further, the assignment "will be modified as needed to meet Complainant's medical restrictions and available work" (provision (3)). These provisions, as well as the remaining provisions, do not provide Complainant with any more than she was already entitled to as an Agency employee. Therefore, we find the November 10, 2016 settlement agreement lacks consideration and is void. Complainant's underlying complaint shall be reinstated for further processing. CONCLUSION The Agency's decision finding no breach is REVERSED. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to resume processing of the underlying complaint from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of the underlying complaint. A copy of the agency letter of acknowledgement 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 (M0416) 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 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. The requests 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 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 (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 May 23, 2017 __________________ Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170768 6 0120170768