01A00058
05-22-2000
Stephen M. Oppermann, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Stephen M. Oppermann v. Department of the Interior
01A00058
May 22, 2000
Stephen M. Oppermann, )
Complainant, )
)
v. ) Appeal No. 01A00058
) Agency Nos. FNP-94-143
Bruce Babbitt, ) FNP-96-040
Secretary, ) FNP-97-098
Department of the Interior, ) FNP-98-128
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 26, 1999, finding that the
parties had not entered into a binding settlement agreement.<1> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
By letter to the agency dated March 5, 1999, complainant alleged that
the parties had entered into a binding settlement agreement, and that
the agency had breached it. Complainant requested that the agency
specifically implement its terms.
Complainant contends that the parties participated in mediation and
negotiated a settlement agreement, but that he then discovered an error
in the calculation of back pay; and that when he brought the error to the
attention of agency officials, they permitted complainant to re-draft his
own proposed settlement agreement. The record reflects that by letter
of April 20, 1998, the Regional Director indicated that complainant's
"counter-proposal" had been considered, and stated that: "We are willing
to agree to the following:" thereafter setting forth a series of dates
for two promotions and three step increases. The letter also indicated a
gross sum as back pay ($41.622.00), further noting that certain deductions
would have to be made, and that the retirement calculations were being
updated, and would be forwarded when completed.<2> Complainant claims
that he accepted this offer, via e-mail, and asserts that the April 20,
1998, letter, along with his e-mail acceptance of its terms, constitutes
a contractually binding agreement, and demands that the agency fulfill
its terms.
In its August 26, 1999, FAD, the agency concluded that the April 20,
1998, letter did not constitute a binding settlement agreement, finding
that complainant was aware that the agency's policy required Headquarters
approval of all awards over $20,000.00, and should have realized that the
letter was in the nature of a proposal. Furthermore, the agency found
that subsequent to complainant's "acceptance" of the April 20, 1998,
terms, the agency submitted proposed drafts of a settlement agreement
to complainant incorporating these terms, but with a prominent notice
at the top of the first page that:
The parties understand that the following settlement terms are just
proposed and that this document is not considered an official offer of
settlement by the Agency until actual settlement authority is obtained
from the Director, Office for Equal Opportunity, Department of the
Interior and the Solicitor, Office of the solicitor, both located in
Washington, D.C.
On appeal, complainant argues that he knew of the requirement for
Headquarters approval, but assumed that it had already been obtained
prior to issuing the April 20, 1998, letter and proposed settlement
agreement drafts.<3> In response, the agency essentially repeats the
arguments in its FAD.
Upon review of the record and the arguments of both parties, we
find that there was no valid and binding settlement agreement.
First, no agreement was ever signed by both parties as required by
29 C.F.R. � 1614.603. Second, it is well established that a binding
settlement agreement requires a contemporaneous meeting of the minds.
Brown v. Department of Defense, EEOC Request No. 05940628 (November 3,
1994); Mullen v. Department of the Navy, EEOC Request No. 05890349 (May
18, 1989). Here, we find that the parties have done nothing more than
express an intent to settle, upon certain terms, but did not legally
implement this intention in a binding agreement. Moreover, we are not
persuaded by complainant's argument that his e-mail acceptance of the
terms of the April 20, 1998, created a binding settlement agreement
in light of his subsequent actions, including review of drafts of a
proposed settlement agreement, and request for changes,<4> especially
since these drafts clearly declared that the terms were merely proposed
pending Headquarter's approval. Thus, we find that the review process was
continuing and the agreement was not yet final, such that the "meeting
of the minds" necessary to contract formation was absent. Accordingly,
we find that there was no binding settlement agreement, and we AFFIRM
the FAD.
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 (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
May 22, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2A letter dated April 24, 1998, provided the amended retirement
calcuations.
3Apparently, when the agency's regional office submitted the proposed
settlement to Headquarters for approval, Headquarters declined to approve
its terms.
4In a September 11, 1998, fax communication to an agency attorney,
complainant indicated that he would accept the proposed settlement
agreement if it were changed to include provision for him to receive
a step increase to a GS-15, step 7, as provided in the April 20, 1998,
letter.