0120073191
12-14-2007
Elaine Powell-Belnavis, Complainant, v. Steven C. Preston, Administrator, Small Business Administration, Agency.
Elaine Powell-Belnavis,
Complainant,
v.
Steven C. Preston,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120073191
Agency No. 05-04-012
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 14, 2007, finding that the April
30, 2004, purported settlement agreement into which complainant entered
was invalid, and hence there was no breach. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that the agency
would offer complainant a GS-13 Procurement Center Representative
bargaining unit position. In exchange, complainant agreed to drop
an informal complaint. On her last day of work at the agency, the
Chief Human Capital Officer (Chief) signed the purported settlement
agreement.
By letter to complainant dated May 5, 2004, the agency's Associate
Deputy Administrator for Office of Management and Administration
advised complainant that the purported settlement agreement was invalid.
The administrator explained that (1) the Chief was not authorized to
act on behalf of the agency to settle the informal complaint, (2) in
accordance with EEO SOP 37 13 2, the Office of General Counsel (OGC)
is required to participate in all EEO settlement negotiations, to review
proposed EEO settlements for legal sufficiency and is signatory on all
settlement agreements that involve the expenditures of agency funds
(which would include a promotion), (3) OGC did not participate nor did
it review any documents for legal sufficiency pertaining to this case
nor sign any agreement as required under the SOP, and (4) in instances
where promotions or changes in positions are indicated, the appropriate
officials must be involved to make determinations such as whether a
position exists and funds are available, which was not done.
A review of the SOP supports the agency's contention that the Chief
acted outside her authority when negotiating and signing the purported
settlement agreement. For settlement of EEO claims by non- Office
of Inspector (OIG) employees, the SOP requires that the Assistant
Administrator for the agency Equal Employment Opportunity and Civil
Rights Compliance (EEO&CRC), a representative of OGC, and an appropriate
management official must be signatories to all formal settlement
agreements unless waived in writing by those individuals, and an OGC
representative must sign any settlement agreement entered at any stage of
the process in which the payment of federal funds is involved. Also, in
EEO settlements involving non-OIG employees, OGC must review and concur on
legal sufficiency, it must be reviewed by the Assistant Administrator of
EEO&CRC, and OGC must be involved in negotiations involving pre-complaint
EEO settlements involving the payment of agency funds. The weight of
the record shows that most or all these SOP requirements were violated.
In two emails sent by the Acting Assistant Administrator of EEO&CRC to
the Chief a week and a half prior to the purported settlement agreement,
she was notified of some of the above requirements. The first email
advised that in settlement agreements involving the payment of agency
funds, including a promotion, OGC must sign the settlement agreement;
that in instances where promotions are indicated, EEO&CRC always attempts
to ensure coordination through appropriate offices to ensure the position
and funds exist and the complainant is qualified, and that settlements
outside the informal EEO process should be fashioned in conjunction
with OGC. The second email recommended that before going further on
resolution attempts, they meet with OGC for advice on how to proceed,
and without such a meeting, a resolution agreement cannot be finalized
by his office. The Chief knew she did not have authority to enter into
the purported settlement agreement because the weight of the record
shows little or none of the above things occurred. When asked questions
such as how she became involved in the settlement negotiations or why
she believed she had authority to offer complainant the promotion, the
retired Chief wrote she did not recall. The above emails were forwarded
to complainant on April 21, 2004.
Generally, in order to be valid and enforceable, a signed settlement
agreement must be executed by an authorized representative of the agency.
Soliz v. United States Postal Service, EEOC Request No. 05901010
(October 25, 1990). This did not occur here. However, where the
purported representative of the agency had apparent authority to sign the
settlement agreement, it can be valid and enforceable. Apparent authority
is the power to affect legal relations of another person or entity by
transactions with third persons, professed as agent for another, arising
from and in accordance with the other's manifestations to such persons.
Gutierrez v. Department of Health and Human Services, EEOC Appeal
No. 01995569 (March 27, 2002). We find the Chief did not have apparent
authority by virtue of the referenced emails forwarded to complainant
a week and a half before the purported settlement agreement was signed.
On appeal, complainant argues that the Chief had actual authority to
sign the purported settlement agreement, as evidenced by her being the
sole signatory for the agency other agreements. In support, complainant
submits a Memorandum of Understanding signed by her and the Chief on
April 2, 2003. Complainant signed the Memorandum as a union President.
This was not settlement agreement closing an EEO claim. Rather, it
was Memorandum of Understanding between the agency and union regarding
the performance appraisal system, working conditions and allowance of
credit hours. This does not prove the Chief had actual authority to
sign the purported EEO settlement as the sole agency representative.
Complainant also argues that the Chief had apparent authority, but this
is rebutted by the emails sent to complainant.
Accordingly, the FAD's finding invalidating the settlement agreement
is affirmed. As the settlement agreement is invalid, complainant's
complaint is reinstated for processing under 29 C.F.R. Part 1614.
ORDER
The agency is ordered to process complainant's complaint in accordance
with 29 C.F.R. Part 1614.1 The agency shall acknowledge to complainant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
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 (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
December 14, 2007
__________________
Date
1 After the agency advised complainant that the settlement agreement
was invalid, she finalized the informal complaint by filing her
formal complaint. By FAD dated May 19, 2004, the agency dismissed
the complaint, finding it was untimely filed (agency determined it
was untimely filed even before the purported settlement agreement was
signed). Complainant appealed. In Powell-Belnavis v. Small Business
Administration, EEOC Appeal No. 01A44808 (November 16, 2004), request
for reconsideration denied, EEOC Request No. 0520050357 (January 31,
2007), the Commission declined to address the timeliness of the complaint,
instead finding the matter that must be addressed was complainant's claim
of settlement breach. The decision noted that the agency did not have the
opportunity to address this or the validity of the settlement agreement,
and remanded the matter for a determination on breach. Because the
June 14, 2007, FAD before us only ruled on the settlement agreement,
we do not rule on the timeliness of the complaint.
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0120073191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073191