01990358
03-15-2000
Angel M. Lebron, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Angel M. Lebron, Jr. v. United States Postal Service
01990358
March 15, 2000
Angel M. Lebron, Jr., )
Complainant, )
)
v. )
) Appeal No. 01990358
William J. Henderson, ) Agency No. 5F-1419-92
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 1, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> 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).
Complainant contacted the EEO office claiming he had been discriminated
against when: 1) management referred him to the Employee Assistance
Program (EAP); and 2) he was sexually harassed by two female employees.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on October 13, 1992, complainant filed a formal complaint
based on national origin and retaliation.
The complaint was accepted and assigned for investigation. Following
the investigation, the agency issued a FAD, dated January 13, 1995,
finding no discrimination. Complainant appealed the decision to the
Commission on February 17, 1995. On April 27, 1995, the agency notified
the Commission that the FAD had been issued in error, because it did
not realize that the complaint had been withdrawn as part of a MSPB
settlement agreement. The Commission found that it could not determine
whether the complaint was settled, but concluded that it failed to state
a claim. See Lebron v. U.S. Postal Service, EEOC Appeal No. 01952561
(May 2, 1996). On request for reconsideration, the Commission found
that the prior decision improperly dismissed the complaint for failure
to state a claim. See Lebron v. U.S. Postal Service, EEOC Request
No. 05960609 (July 18, 1997). The complaint was remanded to the agency
for a supplemental investigation regarding the settlement agreement.
Specifically, the agency was ordered to "produce any and all evidence
available concerning the provision in the MSPB settlement agreement
allegedly withdrawing complaint No. 5F-1419-92, including, any written
signed settlement agreement..., an authorized copy of the audio cassette
recording wherein [complainant's] then attorney read into the MSPB record
the terms of the settlement agreement, or a certified transcription of
the relevant portions of the MSPB hearing." Id.
Pursuant to the Commission's order, the agency conducted a supplemental
investigation and issued a FAD dated August 3, 1998. The FAD dismissed
the complaint for failure to state a claim, stating that the settlement
agreement specifically provided that complainant "withdraw any and all
EEO complaints or appeals he presently has pending...."
On appeal, complainant contends that the settlement meetings did not
result in a signed agreement. Moreover, he argues that the recording
of the hearing was edited to falsely reflect his agreement to the
settlement terms.
64 Fed. Reg. 37,644, 37,656 (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).
In the instant case, the record contains a certified transcription of
the audio cassette recording of complainant's hearing. The transcription
indicates that a settlement agreement was reached, requiring complainant
to "withdraw any and all EEO complaints or appeals he presently has
pending...." The transcription also reflects that after the terms of the
agreement were read into the record; that complainant was asked by the
MSPB's administrative judge (AJ) whether the terms were acceptable; that
complainant responded that they were and that he had discussed them with
his attorney. Thus, the Commission determines that the record supports
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 "Any 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
the present circumstances to be sufficiently analogous. Although there
is not a hearing transcript in the record, the certified transcription
of the tape recording is an equivalent on which to bind the parties.
Further, a subsequent written version of the agreement reflects the
terms described in the transcription. Therefore, we find that the
parties entered into a valid settlement agreement as described in Acree.
The settlement agreement, as reflected in the certified transcription,
provides that complainant withdraw any and all EEO complainants or appeals
pending at that time. The instant complaint was filed on October 13, 1992,
and therefore is covered by the July 26, 1994 agreement. Accordingly,
we find that the instant complaint is settled and fails to state a claim.
The agency's decision to dismiss the complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 15, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.