Charles A. Murray, et al., Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 11, 2000
01976673 (E.E.O.C. Jan. 11, 2000)

01976673

01-11-2000

Charles A. Murray, et al., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Charles A. Murray, et al. v. Department of the Treasury

01976673

January 11, 2000

Charles A. Murray, et al., )

Complainant, )

)

v. ) Appeal No. 01976673

) Agency No. 97-0015B

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________)

DECISION

Complainant, as the class agent, filed the instant appeal with the

Commission from the agency's August 15, 1997 decision finding that the

agency had not breached a settlement agreement entered into on February 6,

1997 by the agency and complainant as the class agent.<1>

The settlement agreement provided in relevant part (the last sentence

in the portion quoted herein was handwritten and is initialed next to

the date April 22, 1997):

1. The Agency will:

A. Permanent Assignments

- Within a period of not more than 60 days from the date of this

agreement, management will advertise vacant positions and in filling

those positions will give priority consideration to all identified

class members who are rated or ranked as best qualified in their

respective professional areas, grade, and series. Within a period of

60 days, a list of identified class members who have been harmed by

discriminatory management practices will be provided by the class agent

along with supporting evidence to determine eligibility for priority

consideration. The supporting evidence will be accepted by the Director,

Equal Opportunity and Organizational Management, no later than 3:30 p.m.,

April 21, 1997.

By letter dated July 10, 1997, complainant, acting as the class agent,

informed the agency that it had breached the settlement agreement by

not granting priority consideration to all persons who were "harmed."

On August 15, 1997 the agency issued a decision finding that it had

not breached the settlement agreement. The agency found that the

determination of which persons were "harmed" for purposes of determining

who should receive priority consideration was properly made by the agency.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

that any settlement agreement knowingly and voluntarily agreed to by the

parties shall be binding on both parties. A binding settlement agreement

requires a contemporaneous meeting of the minds. Brown v. Department

of Defense, EEOC Request No. 05940628 (Nov. 3, 1994) (citation omitted).

The Commission finds that there was no meeting of the minds regarding

provision 1(A) of the settlement agreement when the instant settlement

agreement was entered into by the parties. Arguments by both parties

persuasively show that at the time the agreement was entered into:

(1) the agency believed that pursuant to the settlement agreement,

it was responsible for determining which persons were "harmed" for

purposes of determining who should receive priority consideration;

and (2) complainant (as the class agent) believed, at a minimum, that

pursuant to the settlement agreement complainant (as the class agent)

was to participate in the identification of which persons were "harmed"

for purposes of determining who should receive priority consideration.

The Commission finds that the priority consideration provision of the

settlement agreement is a material provision of the agreement.

The Commission finds that, when the agreement was entered into, both

parties understood the clause in the agreement concerning harm for

purposes of granting priority consideration to have a significantly

different meaning. Because there was no meeting of the minds of the

parties when the agreement was entered into, we find that the instant

settlement agreement is not a binding settlement and is void.<2> The

Commission also notes that the "priority consideration" promise was

illusory because of the requirement that only the class members who were

already best qualified could be given priority consideration. This is

not priority consideration because a determination would have already

been made as to which persons were best qualified for the position.

The Commission sets aside the settlement agreement and we shall remand

the matter so that the agency may reinstate the settled matter from the

point processing ceased.

The agency's determination that it did not breach the settlement agreement

is VACATED and we REMAND the purportedly settled matter to the agency

for further processing in accordance with this decision and applicable

regulations.

ORDER

Within 30 days of the date this decision becomes final the agency

shall reinstate the settled matter from the point processing ceased and

thereafter process the matter in accordance with Part 1614 Regulations.

Within 30 days of the date this decision becomes final, the agency shall

notify complainant (as the class agent) in writing that it has reinstated

the settled matter and will process the matter in accordance with EEOC

Regulations. A copy of the letter notifying complainant (as the class

agent) of the reinstatement of his EEO matter must be submitted to the

Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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:

Jan 11, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2The Commission notes that although the agency argues on appeal that it

did not breach the agreement, the agency also argues in the alternative

that the agreement should be voided and the parties returned to their

pre-complaint status.