01A30830_r
12-08-2003
George E. Johnson, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
George E. Johnson v. Department of the Treasury
01A30830
December 8, 2003
.
George E. Johnson,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A30830
Agency No. 00-4064
DECISION
Complainant filed an appeal with this Commission on November 5, 2002,
regarding the agency's compliance with the terms of a settlement
agreement entered into between the parties on December 20, 2000.
The settlement agreement provided, in pertinent part, that:
The Agency will:
Attempt in good faith to resolve the complaint pursuant to the agency's
alternative dispute resolution (ADR) program, which provides for initial
mediation of the complaint. The agency shall obtain the mediator from
the Federal Mediation and Conciliation Service.
At the sole option of the complainant reinstate his complaint and
request a hearing before the Equal Employment Opportunity Commission;
or participate in a binding arbitration hearing pursuant to the agency's
ADR program; if the parties are unable to resolve the complaint under
paragraph 1.a. of this agreement.
By letter to the agency dated March 30, 2001, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency reinstate his complaint. Specifically, complainant alleged that
the agency "failed to follow through on the resolutions discussed at the
informal mediation and as provided in 1(b) of the settlement agreement."
On appeal, complainant states he has received no response from the agency
regarding his breach allegations.
By letter dated June 2, 2003, the agency responded to complainant's
appeal, denying that breach has occurred and noting that complainant and
the agency entered into a subsequent settlement agreement in February or
March 2001. However, the agency acknowledged that no signed copy of that
settlement agreement could be located by the agency. The agency submits
the declaration of the Chief, Quality and Technical Support Division,
who recites therein, his recollection of the subsequent agreement and
confirms that by August 2002, the agency fulfilled its obligations under
the subsequent settlement agreement.
By letter dated September 17, 2003, complainant disputes that any valid
settlement agreement exists and argues that he was never aware of a
settlement reached on or about March 2001.
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). EEOC Regulation 29 C.F.R. � 1614.603
provides that any settlement reached shall be in writing and signed by
both parties and shall identify the claims resolved.
In the instant case, we find the record inadequate to establish that any
enforceable settlement agreement between the parties exists. We find
that the agreement dated December 20, 2000, provides only that the parties
consented to attempt to resolve complainant's claims and that complainant
would have the option to reinstate his complaint if that attempt failed.
We find the parties' December 20, 2000 consent to explore resolution
lacks consideration and is therefore unenforceable. Further we find the
record contains no corroborating evidence of any subsequent settlement
between the parties. Complainant is therefore entitled to reinstatement
of his complaint at the point processing previously ceased.
We therefore VACATE the agency's determination that no breach of the
settlement agreement occurred. We REMAND the settled matter to the
agency for further processing at the point processing previously ceased.
ORDER
Within 30 days of the date this decision becomes final, the agency
shall resume processing of complainant's complaint from the point where
processing ceased pursuant to Part 1614 Regulations. The agency shall
acknowledge to complainant that it has reinstated and resumed processing
of complainant's complaint. A copy of the agency letter of acknowledgment
must be sent to the Compliance Officer as referenced below.
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
December 8, 2003
__________________
Date