01A03416
08-22-2000
M. Inez Tyson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
M. Inez Tyson v. Department of the Army
01A03416
August 22, 2000
M. Inez Tyson,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03416
Agency Nos. AJAGF9804I0090
AJAGF9804I0100
Hearing Nos. 120-99-6760X
120-99-6761 X
DECISIONOn April 10, 2000, complainant contacted the Commission
regarding a determination that two complaints she had filed were the
subject of a settlement agreement. The Commission accepts the appeal
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. �1614.405).
The record contains a copy of a Memorandum Order of Settlement and
Dismissal issued by an Administrative Judge (AJ) on February 29, 2000.
The Memorandum stated that after the hearing, the parties announced an
agreement; and that thereafter, efforts to record the agreement with the
court reporting service failed when the tape did not record the telephonic
settlement proceedings. The AJ asserted that his Memorandum memorialized
the agreement, and dismissed complainant's complaints with prejudice.
On appeal, complainant argues that her complaints were erroneously
dismissed by the AJ. Complainant argues that "There is no official
record or a transcript or signed contract of a settlement agreement
between the agency and myself."
In response, the agency asserts that complainant's complaints were
settled on February 29, 2000. According to the agency, the parties
agreed that the agency would raise complainant's 1997 appraisal to a
Level 1 and issue her an award of 5% of her yearly salary. The agency
argues that complainant "entered into the Settlement Agreement knowing and
voluntarily and telephonically informed [the AJ] of her intent to settle
the case." The agency notes that thereafter, the parties contacted
the court reporting service in an effort to record the agreement by
recording the telephone conversation; that the tape failed, however,
and that the agreement was not recorded. The agency contends that a
binding agreement was created when the AJ issued the Order of Settlement
and Dismissal which memorialized the terms.
Volume 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified and hereinafter
referred to as 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). 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. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990).
The Commission determines that the record does not support a finding
that the agency and complainant entered into a legally binding settlement
agreement. We note that 64 Fed. Reg. 37,644, 37,661 (1999)(to be codified
at 29 C.F.R. � 1614.603) provides that "[a]ny settlement reached shall
be in writing and signed by both parties and shall identify the claims
resolved." However, the Commission has previously upheld an oral
settlement agreement in the situation where an agreement was formed
during a hearing before an EEOC Administrative Judge and transcribed
by a court reporter. See Acree v.Department of the Navy, EEOC Request
No. 05900784 (October 4, 1990). In Acree, the Commission noted that the
hearing transcript evidenced the agreement between the parties and that
the subsequent written version of the agreement reflected the terms of
the oral agreement that was evidenced in the hearing transcript. We
find that the present circumstances are not sufficiently analogous,
as there is no hearing transcript in this case.
Accordingly, the agency's determination that complainant's complaints have
been settled is VACATED. The complaints are REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORD ER
The agency is ORDERED to resume processing of the remanded complaints
from the point processing ceased. Pursuant thereto, the agency shall
forward complainant's complaints to the EEOC Administrative Judge who
issued the February 29, 2000 Memorandum Order of Settlement
and Dismissal, for the issuance of a decision in accordance with 64
Fed. Reg. 37,644, 37,657 (1999) (to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.109(a)(3)(i)) The agency shall
acknowledge to complainant that it has received the remanded complaints
and is reinstating the matters for further processing within thirty
(30) calendar days of
the date that this decision becomes final.
A copy of the agency correspondence that transmits complainant's
complaints to the Administrative Judge must be sent to the Compliance
Officer as referenced below.
IMP LEMENTATION 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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
AUGUST 22, 2000
__________________
Date