Dianna R. Cook, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 7, 2001
01991524_r (E.E.O.C. Nov. 7, 2001)

01991524_r

11-07-2001

Dianna R. Cook, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


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.