0120150083
05-01-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150083
Agency No. 20DR-0040-2014102154
DECISION
On October 7, 2014, Complainant filed a timely appeal with this Commission from a final Agency determination (FAD) dated September 12, 2014, finding that no oral agreement existed and dismissing Complainant's settlement breach claim. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Specialist at the Agency's National Cemetery Administration facility in Washington, DC.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 28, 2014, Complainant and the Agency participated in mediation, which did not result in a written settlement agreement.
On May 29, 2014, Complainant sent the mediator an email requesting a copy of the "proposal summary." Complainant sent another email to the mediator on May 30, 2014, stating "Agency was unable to rule on this request [immediate detail/assignment] on the date of mediation" and "I am perplexed that the Agency did not commit to a reassignment request...therefore I respectfully request that the Agency make an immediate and final decision..." Finally, Complainant wrote, "Please provide a disposition and decision of the Agency immediately..." On June 2, 2014, Complainant wrote an email to the mediator asking about the status of the Agency's decision. The mediator responded that the only step that remained regarding temporary detail was to notify all parties and determine where to put Complainant. Later on June 2, 2014, Complainant emailed the mediator that if the matter was not resolved or a dialogue was not reestablished, he would file a formal EEO complaint that day. The mediator responded that the Agency was "trying to work out something" and asked Complainant why he would immediately file a formal complaint. On June 10, 2014, Complainant filed a formal EEO complaint of discrimination.
By letter to the Agency dated July 31, 2014, Complainant alleged that the Agency was in breach of the oral settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to execute the terms of the oral agreement, which included restoration of annual and sick leave, a change to Complainant's performance appraisal, and a permanent reassignment. Complainant also alleged that during the mediation, he believed his supervisor had final decision authority, but that this turned out to be false.
In his July 31, 2014 letter, Complainant alleged the mediator allowed a non-executed settlement agreement to be reached. Complainant further alleged that the matters discussed during mediation were resolved, but the terms of the resolution were not reduced to writing. Complainant believes the Agency delayed finalizing the agreement.
In its September 12, 2014 FAD, the Agency concluded that no binding settlement agreement existed. In making its determination, the Agency requested additional information from Complainant, the mediator, and the National Cemetery Administration's Alternative Dispute Resolution Manager (ADR Manager). Complainant reiterated his position in his settlement breach claim. The mediator stated that while the parties suggested "some terms of a potential resolution," no oral settlement agreement was reached. Moreover, the mediator stated that the Settlement Authority was required to approve any terms. The ADR Manager affirmed the mediator's statement that no oral agreement was reached during mediation.
On appeal, Complainant contends that an oral settlement agreement was reached on May 28, 2014, during mediation. Complainant alleges that the meeting ended early because an agreement was made and subsequent emails memorialize the agreement.
ANALYSIS
EEOC Regulation 29 CFR � 1614.603 states that a settlement shall be reduced to writing and signed by both parties, identifying the claims resolved. 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. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996).
In the instant case, the Commission must determine whether or not an oral agreement existed. As per Complainant's several emails with the mediator and other parties, the Complainant repeatedly referred to the lack of a final agreement reached in mediation. For example, Complainant requested the "proposal summary," which indicates there was merely a proposed agreement made during mediation. Additionally, the mediator affirmed that there was no oral settlement agreement reached during mediation. Finally, Complainant concedes on appeal that the Agency took no action to ensure "legitimate ratification" of the alleged agreement. Thus, the Commission finds that no oral agreement existed.
We also find that Complainant's reliance argument, concerning his loss of trust in the process of mediation and that he prepared himself mentally and physically to move on with his life, fails. See Jacobsohn v. Department of Health and Human Services, EEOC Request 05930689 (June 2, 1994) (doctrine of ratification and detrimental reliance may be applied to support enforcement of an agreement that might otherwise be unenforceable).
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 1, 2015
__________________
Date
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0120150083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150083