01991524_r
11-07-2001
Dianna R. Cook v. Department of the Air Force
01991524
November 7, 2001
.
Dianna R. Cook,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01991524
Agency No. AL-900-99-0216
DECISION
Complainant filed a timely appeal with this Commission from a November
13, 1998 final agency decision declaring that it would not comply with
the terms of the September 8, 1998 settlement agreement executed by
the parties. See 29 C.F.R. � 1614.402 and 29 C.F.R. � 1614.504(b).
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant filed a formal EEO complaint against the agency on
August 24, 1998, claiming that the agency failed to provide her with a
reasonable accommodation for her disability, and claimed harassment and
discrimination on the basis of disability. According to a Supplementary
Report prepared by the Chief EEO Counselor (Report), complainant
and certain named agency officials, engaged in an Alternative Dispute
Resolution attempt which resolved this complaint under the terms of the
above referenced settlement agreement.
The Report indicates that immediately prior to the mediation session,
all involved management officials met with the Chief EEO Counselor,
and that none of them voiced a concern about the resolution attempt. The
Report further reveals that complainant's second line supervisor allowed
his office and computer to be used for the mediation session, and that
he told complainant's first line supervisor to work with complainant in
the session to resolve the dispute. Additionally, the Report indicates
that the �base legal officer and management representative,� also
represented the agency, and drafted the final terms of the agreement
resulting from the mediation. Moreover, this Report reflects that an
experienced mediator conducted the session, and that the atmosphere was
professional and friendly, specifically noting that complainant's first
line supervisor was not pressured. At the end of the session, after the
agreement was executed, the Report indicates that complainant's second
line supervisor returned, reviewed the agreement, and asked those present
if they were comfortable with the terms. The Report reflects that each
participant responded that he/she was satisfied with the agreement.<1>
However, the Report then states that by e-mail dated October 14, 1998,
complainant informed the Chief EEO Counselor that the agency refused
to honor the terms of the agreement. The Report reveals that despite
efforts by the EEO office and the base legal office to persuade the
base Commander (who was not present at the mediation) to honor the
agreement, he refused to do so. In the November 13, 1998 decision,
the agency stated that it would not comply with the agreement because
the agency signatories had no authority to sign on behalf of the agency.
Complainant now appeals this determination.
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).
In the instant case, we find that the settlement agreement, signed by
complainant, the mediator, complainant's first line supervisor, and
the �base legal officer and management representative,� is valid and
binding upon the parties. Specifically, the �base legal officer and
management representative,� who also drafted certain changes to the
agreement based on the mediation, clearly represented that he had the
authority to act on behalf of the agency, and the record is devoid of any
evidence to suggest that he acted without authority to bind the agency
in this instance. Therefore, whether or not complainant's second line
supervisor effectively delegated his authority to settle the complaint
to the first line supervisor is irrelevant given that the agreement was
signed by at least one agency official who had the authority to bind
the agency.
Notwithstanding our determination that the agreement is valid, it is
nonetheless clear that the agency has no intention to comply with its
terms. In particular, in pertinent part, a November 13, 1998 memorandum
by the base Commander reveals his opinion that it is poor policy for the
agency to enter into a settlement agreement prior to a determination of
discrimination, and that to do so sends an �extremely destructive message�
to all employees who are unhappy with their performance appraisals.
Therefore, in light of this opinion, and the fact that the Commander
did not heed advice from the EEO office and base legal office urging him
to honor the agreement, we find that the proper remedy in this case is
reinstatement of the complaint from the point which processing ceased.
Accordingly, we REVERSE the agency determination, and REMAND the case
to the agency to reinstate the complainant's EEO complaint, consistent
with the ORDER below.
ORDER
1. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall reinstate complainant's August 1998 complaint
from the point processing ceased, and immediately undertake processing
in accordance with Part 1614 Regulations. The agency is to expedite the
investigation of the complaint, and to contact all witnesses identified
by complainant, whether or not they are still employed by the agency.
2. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall notify complainant in writing that it reinstated
her complaint and that it will process in accordance with this Order.
A copy of the letter notifying complainant of the reinstatement of her
complaint must be submitted to the Compliance Officer as referenced
herein.
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
November 7, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In pertinent part, the agreement provided that in exchange for
complainant withdrawing her EEO complaint, the agency agreed to revise
her performance appraisal, to transfer her to another office, and to
refrain from retaliation.