01980808
10-02-1998
Robert P. Kilpatrick, Appellant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Robert P. Kilpatrick, )
Appellant, )
)
v. ) Appeal No. 01980808
) Agency Nos. ED-91-21001
Richard W. Riley, ) 97-033-IDR
Secretary, )
Department of Education, )
Agency. )
)
DECISION
Appellant timely filed an appeal regarding an alleged breach of the
terms of a settlement agreement. See 29 C.F.R. ��1614.504, .402(a);
EEOC Order No, 960, as amended. The issue presented on appeal is whether
the parties entered into a binding settlement agreement.
On appeal, appellant contends that there is a binding settlement agreement
and that the agency cannot set the agreement aside because it made a
bad bargain. Appellant contends further that he accepted the agency's
final offer on April 23, 1997. After communicating his acceptance
of the offer, appellant asserts, the agency's Human Resources Group
(HRG) and the Office of General Counsel (OGC) reviewed and cleared the
settlement agreement as was the agency's policy, and all that was left
to be accomplished was for the agreement to be signed on June 4, 1997.
Appellant asserts further that after discovering the amount of interest
appellant would receive, the agency refused to sign the agreement,
although the agreement had already received the appropriate clearances.
Appellant also contends that despite the issue regarding interest,
the EEO/Counselor Mediator continued to assure him that an agreement
existed and he believed he had an agreement.
In response to the appeal, the agency contends that the parties never
reached agreement. The agency indicates that the settlement agreement
was not signed nor was there a meeting of the minds. The agency also
contends that even if there was an agreement, the agreement would be
unenforceable because the agency cannot pay appellant back pay for a
time period longer than two years prior to the filing of his complaint.
The record reveals that on April 19, 1991, appellant filed a complaint
alleging unlawful discrimination in connection with the classification
of his position and other agency actions. On December 26, 1996,
appellant sought EEO counseling regarding other allegations of unlawful
discrimination. Beginning in March 1997, appellant, who is represented
by counsel, and the agency met on several occasions for the purpose
of negotiating a settlement agreement, regarding appellant's 1991 and
1996 complaints.
In an April 16, 1997 Memorandum to appellant, the OM acknowledged
receipt of the "draft settlement agreement" from appellant<1> and made
a counteroffer, therein identifying the agency's proposed changes.
In an April 25, 1997 electronic mail message from appellant to the EEO
Counselor/Mediator, appellant attached a "draft" settlement agreement.
Among other things, the draft agreement provided that appellant would
be promoted retroactive to 1980; that appellant would receive back pay
with interest, pay raises and merit pay increases based on a rating of
superior for those years when he was a GM employee; that interest was to
be computed in the manner prescribed by 29 C.F.R. �1614.501(c)(1); and
that appellant would participate in an assignment under the provisions
of the Intergovernmental Personnel Act (IPA). The draft agreement also
provided that the agreement would become "effective" and "enforceable"
on the date of the last signature and that appellant's signature on the
fully executed agreement would constitute a withdrawal and dismissal with
prejudice of his complaints in ED-9121001 and the complaint brought to
the attention of the Informal Dispute Resolution Center in December 1996.
A specific amount for attorneys' fees was also provided.
Another draft agreement was prepared by the agency as evidenced by a
May 8, 1997 facsimile cover sheet from the EEO Counselor/Mediator to
MK.<2> Accompanying the facsimile was a draft settlement agreement,
identified by the agency as a Memorandum of Agreement. The Memorandum
of Agreement contained handwritten notations and deletions made by the
Deputy Assistant General Counsel, indicating that the Memorandum of
Agreement was "OK provided suggested changes [were] made." One of the
changes reflected in the Memorandum of Agreement was the handwritten
deletion of the provision regarding how interest was to be computed.
The deleted provision was accompanied by the notation that the provision
was not applicable to the agreement. Terms of the settlement agreement
providing for interest on back pay and the provision which appellant
added regarding raises based on a superior rating remained.
In a June 26, 1997 letter, appellant's attorney wrote to the Counselor
Coordinator and indicated that on April 23, 1997, settlement terms were
extensively discussed and "ultimately accepted" by appellant, that
the settlement agreement was forwarded to the EEO Counselor/Mediator
on April 25, 1997, and subsequently to the OGC where it was cleared.
Appellant's counsel also stated that appellant and the agency operated
"under the assumption" that a binding agreement was reached and that the
agreement was to have been signed on June 4, 1997. Appellant's counsel
stated further that despite his submissions of two options to the agency
concerning its inquiry regarding whether appellant would negotiate the
interest on back pay, it was conveyed to the EEO Counselor/Mediator that
an agreement was already in effect. Counsel also stated that appellant
relied to his detriment on the fact that a binding agreement was in
effect. Specifically, appellant refrained from filing a discrimination
complaint based on a recent non-selection for a position, began to talk
to other organizations regarding an IPA assignment, and refrained from
applying for a number of positions within the agency and elsewhere.
The letter requested that a date be set for the agreement to be signed
or that a final decision be issued by the agency.
On August 8, 1997, a Notice of Right to File was issued to appellant by
the EEO Counselor/Mediator. As a result of the issuance of the Notice of
Right to File, which appellant interpreted as notice that the agency did
not plan to comply with the terms of the settlement agreement, appellant
informed the Director of the EEO of the alleged breach in a September 10,
1997 letter.
The record contains appellant's November 4, 1997 affidavit. The affidavit
reflects that in an April 23, 1997 meeting with appellant and the
agency regarding the settlement agreement, the agency made an offer
to appellant and appellant was informed that if he accepted the offer,
he was to notify the EEO Counselor/Mediator. Later that day, appellant
informed the Deputy Director, OM/Acting EEO Director (Deputy Director)
that he would accept the offer;<3> however, he wanted to add language to
the agreement indicating that his Performance Recognition System raises
would be based on a rating of superior for those years when he was a GM
employee, since he did not remember what his performance ratings were when
he was a GM employee. The change was agreed to by the Deputy Director.
Later on April 23, 1997, appellant called the EEO Counselor/Mediator to
inform him that he was accepting the offer and that he would be sending
him the settlement agreement after placing it in the appropriate agency
format. The EEO Counselor/Mediator informed him that the agreement would
be forwarded to the HRG and the OGC for their review and clearance.<4>
In his affidavit, appellant stated that sometime after he submitted the
draft agreement for review, he was informed by the EEO Counselor/Mediator
that the settlement agreement was cleared by the HRG and the OGC. Only a
date for the signing needed to be arranged. The affidavit reflects that
a day or two before the scheduled signing on June 4, 1997, the Deputy
Director asked the EEO Counselor/Mediator to have the HRG calculate the
amount of interest so that the Deputy Secretary, one of the intended
signatories to the agreement, would know the cost of the settlement.
The interest estimate was forwarded to the EEO Counselor/Mediator.
Appellant further stated in his affidavit that the EEO Counselor/Mediator
told him that after he inquired of the Deputy Director about the signing
of the agreement, she told him that the "interest is more than we had
thought it would be."
Appellant's affidavit also reflects that after the interest estimate
was provided, the EEO Counselor/Mediator asked appellant if he was
willing to negotiate the amount of interest. Appellant informed the
EEO Counselor/Mediator that it was his position that there was a legally
enforceable agreement which was relied upon by both parties and any of his
responses to the agency's inquiries on the subject of interest were to be
considered only in the context of modifications to an existing agreement.
Appellant indicated that following this conversation with the
EEO Counselor/Mediator, the Deputy Director proposed through the
EEO Counselor/Mediator that he not accept any interest, a proposal
appellant rejected. Appellant then submitted two "modification options"
which were rejected. The Deputy Director then made a counter-proposal
which appellant also rejected and no agreement was reached. During the
interest negotiations, appellant asked the EEO/Counselor Mediator whether
the Deputy Director was taking the position that there was no agreement.
The EEO Counselor/Mediator informed appellant that the Deputy Director
believed that an agreement was still in effect and wanted that point
made clear to appellant. During the latter part of June 1997, while
the EEO Counselor/Mediator was on vacation, appellant spoke with the
Counselor Coordinator. He asked him to determine from the Deputy Director
whether there was an agreement. The EEO Coordinator informed him that
the Deputy Director indicated that the agency was not "backing away"
from the agreement.
In his affidavit, appellant indicated that he was completely familiar with
the review and clearance practices and procedures regarding settlement
agreements because he had written the procedures and had been responsible
for their implementation for four years. Appellant stated that a review
by the HRG and the OGC was not performed until after the parties reached
an agreement. Appellant stated that although both the HRG and the OGC
must both clear an agreement, clearance by the OGC matters most because it
is inclusive of an HRG clearance. He noted further that if the HRG and
the OGC had problems with the agreement, the matters would be brought
to the attention of both offices. If a resolution was not reached,
the agreement would not be cleared. Once an agreement was cleared,
only the signing of the agreement remained.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. EEOC Regulation 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 allegations resolved."
Upon review of the record and the arguments of both parties, we find
that there was no valid and binding settlement agreement. The purported
agreement was not signed as required by 29 C.F.R. �1614.603. Moreover,
one of the provisions of the purported agreement itself required that
all the signatures had to be affixed in order for the agreement to be
binding. Signing therefore was not a mere ceremonial formality meant
only to acknowledge the existence of an already binding agreement but
would bring a legally binding agreement into existence.
Further, 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). Although the parties expressed
an intent to settle, expressed an understanding of certain terms of
the agreement, and expressed their intention by reducing terms of
the agreement to writing, the fact that the HRG and the OGC had to
review the agreement, reveals that the agreement remained tentative.
We are not persuaded by appellant's argument that the internal review
was completed and all that needed to be done was to sign the agreement.
That a request for a calculation of interest was made after appellant's
submission of the draft agreement on April 23, 1997, establishes that the
review process was continuing and the agreement was not yet final. Thus,
the meeting of the minds necessary to contract formation was absent.
The Commission notes that in Walker v. USPS, EEOC Appeal No. 01961066
(February 18, 1997) we held that a settlement agreement existed
where appellant relied on written communications with the agency and
withdrew his discrimination complaint. The facts in Walker, however,
are distinguishable from the present case. In Walker, appellant made
one written offer to the agency EEO Director and that offer was fully
accepted by the EEO Director. The Walker documents reflect a clear
meeting of the minds regarding the offer and the agency's acceptance.
In the present case, there were several offers and counteroffers.
Appellant himself made a change to what he described as the agency's
final offer on April 23, 1997. In addition, unlike in Walker, there
was never any signing by any of the parties in the present case.
To the extent that appellant is alleging that a binding agreement
came into existence when he informed the agency that he was accepting
the agreement and he was informed that the agreement was cleared,
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.
The Commission also noted that the subsequent written version of the
agreement reflected the terms of the oral agreement that was evidenced in
the hearing transcript. Newman v. Department of the Navy, EEOC Request
No. 05930458 (July 1, 1993).
In the present case, while there is a writing, we do not have a
hearing transcript or its equivalent on which to bind the parties.
The draft agreement submitted by appellant to the agency on April
23, 1997, was subject to an internal review process by the agency.
If it was not cleared during the internal review process, there would
be no agreement. The existence of this condition demonstrates to
the Commission that the purported agreement was tentative and did not
reflect the final understanding of the parties. See McGriff v. General
Services Administration, EEOC Appeal No. 01940104 (January 10, 1994)(oral
agreement reached in presence of an EEOC Administrative Judge and entered
into the hearing transcript did not in any way indicate that either the
EEOC AJ or the parties considered the agreement that was read into the
record to be a tentative or proposed agreement); Gelin v. Department of
the Treasury, EEOC Appeal No. 01924271 (November 10, 1992)(no binding
agreement where transcript of a hearing before an EEOC AJ reflected
that the parties had reached a tentative settlement agreement and had
drafted a proposed agreement and the parties understood that the terms
of the agreement as read into the hearing transcript were not the final
terms of the agreement). That the agency prepared a subsequent draft
suggests that the draft agreement prepared by appellant was not intended
to manifest the final agreement. See Greeley v. Department of the Navy,
EEOC Request No. 05910331 (August 8, 1991).
Accordingly, we find that there was no written settlement agreement
as provided for in �1614.603; that there was no meeting of the minds
between the parties; and that there was no valid oral agreement.
Finally, although appellant asserts that he relied on the agreement
to his detriment, we do not so find. This doctrine provides that,
although a settlement agreement might otherwise be unenforceable, it may
be enforced where one party has acted to his or her detriment in reliance
on the promises of the other party. Jacobsohn v. Department of Health
and Human Services, EEOC Request No. 05930689 (June 2, 1994)(doctrines
of ratification and detrimental reliance may be applied to support
enforcement of an agreement that might otherwise be unenforceable).
The purported agreement reflects that in exchange for promises made
by the agency, appellant agreed to withdraw his complaints and waive
any claim arising out of the complaints. Appellant never withdrew his
complaints or signed a waiver. Accordingly, we cannot find that appellant
relied to his detriment on the purported agreement. Although appellant
contends that he did not pursue another discrimination complaint, there
is no evidence that appellant tried to file a discrimination complaint
or was informed that he could not do so. Likewise, appellant has not
provided any evidence of any positions that he decided not to apply
for because he believed that there was a binding settlement agreement.
Moreover, there is no connection between these alleged actions appellant
allegedly refrained from taking and the actions appellant was promising
to take under the purported agreement. While appellant also alleged that
he began exploring IPA assignments, one of the terms of the purported
agreement, there is no evidence that these explorations constituted
detrimental reliance.
Accordingly, we find that there was no binding settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received by the
Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 2, 1998
DATE Ronnie Blumenthal, Director
1The record does not contain a copy of that draft settlement.
2The record does not disclose the relationship of MK to this matter.
3The Deputy Director was one of the intended signatories to the agreement.
4We note that the EEO Counselor/Mediator was never identified in any of
the agreements as one of the signatories.