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.