01A10913_r
04-23-2001
Barry A. Ormond, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Barry A. Ormond v. Department of Justice
01A10913
April 23, 2001
.
Barry A. Ormond,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A10913
Agency No. P-95-8716
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated October 31, 2000, regarding an alleged breach of the
terms of a settlement agreement. The issue presented on appeal is
whether the parties entered into a binding settlement agreement.
On appeal, complainant contends that the parties entered into a verbal
informal settlement agreement in August 1995, in resolution of his EEO
complaint. Complainant claims that he entered into an agreement with the
agency, as represented by the EEO Investigator and Person A, the former
warden. Complainant cites an affidavit provided during the investigation
of a subsequent EEO complaint (Agency Case No. P-98-9343) as evidence that
a verbal agreement was reached. According to complainant, the parties
agreed that he would remain in the slot of Employee Development Assistant
in the Employee Development Department as long as the slot was open.
Complainant claimed that he was reassigned in September 1997 in breach
of the verbal agreement.
In its decision the agency found that complainant withdrew his
complaint on August 30, 1995. The agency refused to reinstate the
withdrawn complaint. In response to the appeal, the agency contends
that the parties never entered into a settlement agreement. The agency
states that it has no record of a written settlement agreement regarding
complainant's EEO complaint.
The record shows that the complaint was withdrawn by complainant on
August 30, 1995. The record contains the affidavit for Agency Case
No. P-98-9343 which complainant relies on to support his argument
that an informal resolution was reached. In the affidavit, Person B,
the Employee Development Manager, states that when complainant was
reassigned to her office in 1995, she was told that this was done
pursuant to an EEO settlement. Person B also states that it was her
understanding that an agreement was signed by Person A and complainant
regarding complainant's assignment to the Employee Development Department.
Upon review of the record and the arguments of both parties, we find
that there was no binding settlement agreement. The record reveals
that the purported agreement was not reduced to writing as required by
29 C.F.R. �1614.603. The Commission notes that we have only upheld the
validity of a settlement agreement entered into orally in one type of
situation, i.e., when a verbal agreement is reached during a hearing
before an EEOC Administrative Judge. Acree v. Department of the Navy,
EEOC Request No. 05900784 (October 4, 1990). In upholding the validity
of the oral agreement in Acree, the Commission relied on the fact that
the hearing transcript evidenced the agreement between the parties.
In the present case, there is no writing to rely on, nor do we have
a hearing transcript or its equivalent on which to bind the parties.
With regard to complainant's attempt to rely on the affidavit of Person B,
we find that this is insufficient evidence to indicate that a settlement
was reached with regard to his EEO complaint. The Commission notes that
absent written confirmation of the terms of an agreement, it is unable
to enforce a settlement agreement. Accordingly, we find that there was
no written settlement agreement as provided for in �1614.603 and that
there was no valid oral agreement.
Accordingly, we find that there was no binding settlement agreement and
that the agency's decision refusing to reinstate the withdrawn complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 23, 2001
__________________
Date