0120100016
10-25-2011
George Davidson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
George Davidson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100016
Agency No. 99032SSA
DECISION
Complainant filed a timely appeal with this Commission from a final
determination by the Agency finding that it was in compliance with the
terms of the settlement agreement into which the parties entered. See 29
C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
On November 29, 2007, the parties entered into a settlement agreement
resolving Complainant’s EEO complaint in which he alleged gender
discrimination with regard to the Agency's failure to select him�
�for an administrative law judge (ALJ) position in 1991. The thrust
of the settlement agreement was to specify conditions under which
Complainant would be given priority consideration for an ALJ position
in the Agency’s Baltimore, Maryland Hearings Office (BHO).1
By letter to the Agency dated April 3, 2009, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. In summary, Complainant
asserted that the Agency filled several ALJ positions in Baltimore in
early 2009, but failed to consider Complainant for any of them.
In response, the Agency issued a written determination on September 2,
2009, that there had been no breach of the agreement. The Agency took
the position that its obligation to provide Complainant with priority
consideration had not yet been triggered. The Agency indicated that
its obligation to provide Complainant with priority consideration
was contingent upon three factors which had not yet occurred: (1) a
“vacancy” in the BHO must be determined by the Agency to exist, (2)
based upon that determination, the Agency must receive a Certificate of
Eligibles from the Office of Personnel Management (OPM) that identifies
the BHO as an office with a vacancy, and (3) the Certificate of Eligibles
must contain Complainant’s name. Since these events had not occurred,
the Agency concluded it could not have breached its obligation under
the agreement to provide Complainant with priority consideration.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant urges the Commission to find that the Agency breached
the settlement agreement in 2009 due to its failure to “trigger”
the “mechanism” that would have made him eligible to receive the
priority consideration for which he bargained. He contends that his
failure to be considered for any BHO ALJ positions, since November 2007,
supports a finding that the Agency has failed to act in good faith and
has, thereby, breached the agreement. As relief, Complainant seeks an
order from the Commission directing that an investigation be conducted
into the circumstances surrounding the Agency’s failure to include the
Baltimore Hearing Office in any ALJ certificate request it submitted
to OPM between the date the agreement was signed and when it replaced
several newly retired ALJs in Baltimore in early 2009.
In response, the Agency contends that the settlement agreement does not
specify a timeframe for its promised actions to be taken, noting that
none of the agreed upon contingencies to providing Complainant priority
consideration has occurred. Thus, according to the Agency, there is no
basis for the Commission to conclude that the agreement has been breached.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.504 provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall
be binding on both parties. The regulation further provides that
if the complainant believes that the agency failed to comply with
the terms of the settlement agreement, the complainant shall notify
the Director of Equal Employment Opportunity, in writing, of the
alleged noncompliance with the settlement agreement, within thirty
(30) days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
the processing ceased. The agency shall resolve the matter and respond
to the complainant, in writing. If the agency has not responded to the
complainant, in writing, or if the complainant is not satisfied with the
agency's attempt to resolve the matter, the complainant may appeal to
the Commission for a determination as to whether the agency has complied
with the terms of the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition,
the Commission generally follows the rule that if a writing appears to
be plain and unambiguous on its face, its meaning must be determined
from the four corners of the instrument without resort to extrinsic
evidence of any nature. See Montgomery Elevator v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984). The Commission has followed this
rule when interpreting settlement agreements. The Commission's policy
in this regard is based on the premise that the face of the agreement
best reflects the understanding of the parties.
The Dispute When The Appeal Was Filed
The dispute in this appeal, at least as framed at the time the appeal
was filed,2 essentially implicates the language in paragraphs 7 and 8�
�of the settlement agreement, which provide, in pertinent part:
7. In consideration of Complainant's promises set forth herein, and
subject to the conditions set forth below, the Agency will afford
Complainant with priority consideration for one ALJ position in the
[BHO]...SSA will transmit a copy of the Settlement Agreement and Order
of Dismissal to [the Office of Personnel Management (OPM)] and the
time it requests a Certificate of Eligibles from OPM identifying the
[BHO] ... as a location with a vacancy that will be filled by the
selection of a new ALJ. SSA will simultaneously request that OPM place
Complainant on the Certificate of Eligibles for the [BHO]....SSA will
afford Complainant priority consideration upon issuance of a Certificate
of Eligibles by OPM containing Complainant's name....
8. Priority consideration will be afforded to Complainant when a vacancy
for the [BHO]… is determined solely by SSA to exist, and when, based
upon that determination, SSA receives a Certificate of Eligibles from
OPM that identifies that the [BHO] … as an office with a vacancy
that will be filled by the selection of a new ALJ and that contains
Complainant’s name. Subject to OPM requirements, priority consideration
will be afforded to Complainant on the first ALJ Certificate of Eligibles
containing Complainant’s name and identifying Baltimore, Maryland …
received by SSA after the parties execute this settlement agreement.
Given the foregoing terms, it is apparent that the “mechanism”
Complainant believes should have been “triggered” in early 2009,
is the Agency’s designation of a BHO ALJ “vacancy” to be filled
by a “new” ALJ selected from an OPM-issued ALJ certificate. To this
extent, it can be said that Complainant does not dispute the Agency’s
contention that the threshold conditions governing his ability to
potentially receive priority consideration had not occurred at the time
he claimed the settlement had been breached.
If the Commission were to limit its inquiry to the plain wording of
the settlement agreement, it would necessitate summary dismissal of
Complainant’s breach claim on the ground that it is lacking in factual
support. However, we choose not to limit our inquiry to the agreement’s
express terms because we conclude that the agreement is deficient as a
matter of policy and law.
The Commission has long refrained from giving effect to settlement
agreements containing promises that are wholly “illusory” in nature.
See Obrien v. Postmaster General, EEOC Request No. 05920560 (February 11,
1993) (citing Ingram v. GSA, EEOC Request No. 05880565 (June 14, 1988)).
An illusory promise has been defined as one that makes performance of
the promise “entirely optional with the promisor.” Penn v. Ryan
Family Steak House, 269 F. 3d 753, 759 (7th Cir 2001).
Here, there can be no question that the threshold condition for
Complainant’s eligibility to receive priority consideration is, by
virtue of the settlement agreement, completely within the Agency’s
control. The agreement expressly provides that only the Agency can
determine what qualifies as a BHO “vacancy.” Moreover, nothing
therein precludes the Agency from making its determination in disregard
of commonly understood conceptions of what a vacancy is. Indeed, as the
Agency concedes, the agreement permits it to place an individual in an
unencumbered ALJ position in the BHO even as it declines to recognize the
unencumbered position as a vacancy for purposes of the promises made to
Complainant in November 2007. It is difficult to imagine a more classic
example of an illusory promise than the one in the instant agreement
governing the designation of an ALJ “vacancy” in the Agency’s BHO.
Our finding with regard to this threshold requirement for Complainant’s
consideration renders the entire agreement void for lack of adequate
consideration.3
Notwithstanding the agreement’s clear language, it strains credulity
and common sense to suggest that Complainant would have willingly
withdrawn his 1991 complaint had he understood that what he was getting
in exchange was a promise the Agency would only be optionally required
to keep. We, therefore, nullify the settlement agreement and conclude
that Complainant’s underlying complaint must be promptly reinstated.4
The Dispute(s) After The Appeal Was Filed
The record contains a stream of submissions, filed by the parties,
relating to events which occurred after initial briefing was completed
in this appeal. The substance of each may be summarized as follows:
On October 28, 2009, Complainant filed a supplemental statement in
which he argued that despite the fact that the Agency identified four
permanent ALJ “vacancies” in BHO as of March 2009, he learned that
an ALJ from Cleveland, Ohio, was transferred to Baltimore on September
13, 2009, to fill one of the four vacancies. According to Complainant,
this ALJ was not on the reassignment (transfer) list as it existed in the
two-month period prior to March 2009. On January 10, 2010, Complainant
filed another statement in which he asserted that an ALJ from Roanoke,
Virginia, was transferred into another of the four vacancies and that
this ALJ as also not on the relevant reassignment list. On February 23,
2010, Complainant filed an additional statement asserting that a third
slot in BHO was filled when an ALJ, also not on the reassignment list
prior to March 2009, was transferred from Richmond, Virginia.
On March 31, 2010, Complainant filed a supplemental statement indicating
that he learned that the Agency initiated a change in policy by waiving
the longstanding provision in the ALJ union contract prohibiting newly
hired ALJs from requesting transfers (except in hardship situations)
until first serving two years in their originally hired localities.
Under the waiver, ALJs were now only required to serve 90 days in their
originally hired localities before being eligible to request a permanent
transfer to another locality. Complainant argued that at the time the
three 2009-2010 vacancies discussed above were filled, the transfer list
under the old policy would have been exhausted and a competitive selection
would have occurred, which would have triggered Complainant’s right to
priority consideration. Instead, however, according to Complainant, the
Agency relaxed the transfer eligibility policy which deprived Complainant
of an opportunity to be considered for one of the BHO positions.
On January 10, 2011, Complainant filed another statement indicating he
learned that the Agency filled the fourth and final vacancy with another
ALJ transfer under the 90-day waiver, thereby “mooting” the relief
he bargained for in settlement agreement since no current ALJ vacancies
existed in BHO.
On April 12, 2011, Complainant again indicated that the Agency filled
two additional ALJ positions in BHO by transfer despite requesting a
certificate of eligibles from OPM. In an additional statement filed
on April 26, 2011, Complainant indicated that OPM was creating an
“inventory of one” for him so that the Agency could consider him
for an ALJ position. However, he asserted that the Agency did not wait
for the “certificate” before it filled the “last two vacancies in
Baltimore” by transfer. Complainant also reiterated his arguments
about the Agency’s waiver of the transfer eligibility rule in its
union contract with the ALJs.
On May 6, 2011, the Agency filed a Response to Complainant’s April 12
and 26, 2011 filings. In that Response, the Agency argued that it was
its practice to requests certificates if an ALJ vacancy might occur at
a location. However, it could later determine that the possible vacancy
no longer existed because it was filled via transfer or because an
anticipated retirement of an ALJ did not occur. This was the situation,
according to the Agency, when it requested a certificate of eligibles from
OPM in February 2011 in anticipation of a number of potential vacancies
at BHO. However, despite the Agency’s request, OPM refused to place
Complainant on the certificate. As a result, the Agency asserts it worked
with Complainant to craft a “confidential finding of discrimination”
for an EEOC Administrative Judge (AJ) to sign in order to provide OPM
with the legal basis it required in order to place Complainant on a
certificate. The AJ issued the finding, and Complainant submitted it
to OPM on April 1, 2011. Pursuant to the discrimination finding, on
April 17, 2011, OPM indicated it would create an “inventory of one”
so Complainant could be considered by the Agency for an ALJ vacancy.
However, on or around April 7, 2011, the potential vacancies in BHO
were filled via internal transfers. Therefore, the Agency argues that
at the time the two transfers occurred, it could not have considered
Complainant because OPM would not put Complainant on a certificate
of eligibles. The Agency asserts that now that Complainant is on an
“inventory of one,” he can be provided with priority consideration
for the next BHO vacancy in accordance with the settlement agreement.
Finally, the Agency argues that since Complainant is not a member of its
ALJ bargaining unit, he has no standing raise a challenge to its waiver
of the provisions of its collective bargaining agreement with the ALJs
concerning transfer eligibility.
On May 19, 2011, Complainant filed a reply to the Agency’s May 6, 2011
response arguing that the Agency’s decision to fill the two most recent
vacancies by transfer after it requested a certificate of eligibles,
and when it knew that the “inventory of one” was in the works, was
“plainly a bad faith action and a clear breach of Paragraph 7 of the
Settlement Agreement.” Complainant stated that "all six BHO vacancies
that have occurred since the [settlement agreement] was executed were
due to BHO ALJ retirements and all were filled by the Agency with newly
hired transferees."
The Agency responded with a filing on June 15, 2011, arguing that
Complainant’s real concern is with the Agency's decision to transfer
ALJs from other offices. However, the Agency stated that as it has
explained several limes, transferring ALJs from other offices, instead
of determining that a vacancy exists that will be filled with a new ALJ,
is perfectly consistent with the settlement agreement Complainant signed.
The Agency argues that Complainant is clearly unhappy with the agreement
he made, but his belief that he made a bad bargain does not justify
setting aside the settlement agreement.
Finally, on June 16, 2011, Complainant filed an additional reply urging
the Commission to utilize equitable estoppel to retroactively estop the
Agency from mooting the April 2011 certificate (presumably by cancelling
the transfers), and order the Agency to give Complainant his bargained
for priority consideration.
The foregoing submissions make it apparent that events subsequent to
the filing of this appeal have given rise to an ongoing dispute over
Complainant’s allegations that the Agency has affirmatively engaged
in a pattern of bad faith behavior to ensure he is not considered for
a BHO ALJ position in perpetuity. We find it inappropriate to consider
this ongoing dispute in light of our decision to set aside the settlement
agreement as void. To the extent Complainant wishes to develop a record
with regard to concerns that the Agency has continuously acted in bad
faith, he may rely on this decision as authority to amend his reinstated
complaint, as appropriate.
CONCLUSION
For the reasons set forth above, the Agency’s final decision is
REVERSED. This matter is REMANDED to the Agency to take the actions in
accordance with the Order below.
ORDER
The Agency is ordered to reinstitute the underlying EEO complaint that was
settled by the parties in November 2007, and shall continue processing
pursuant to the provisions of 29 C.F.R. Part 1614 from the point where
processing ceased as a result of the settlement. As appropriate,
Complainant may request that the complaint be amended to add the events
detailed in this decision concerning his allegations that the Agency has
engaged in a pattern of bad faith behavior to ensure that he is never
considered for an ALJ position in BHO.5 The Agency shall acknowledge to
the 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, as
well as the eventual final agency decision or order, must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (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 (R0610)
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 (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
October 25, 2011
__________________
Date
1 The agreement allowed Complainant to substitute another location for
Baltimore. However, it does not appear that he had exercised that option
at the time the appeal was filed.
2 Subsequent filings by the parties reflect that additional issues
have arisen since the time the appeal was filed (see discussion infra).
3 The settlement agreement is illusory in other respects as well.
However, we need not elaborate on other questionable provisions having
found the Agency’s threshold promise regarding BHO vacancies flawed
as a matter of law.
4 We are aware that the agreement also provided for Complainant’s
attorney’s fees and that no dispute exists in that regard. We conclude,
however, that the record fails to support a finding that the payment of
fees is sufficient to cure the imbalance in the detriment the parties
incurred.
5 We note that the parties have mentioned a “confidential finding
of discrimination” in their filings. As it is not clear what this is
or how it came to be under the 29 C.F.R. Part 1614 procedures, we are
unable to determine its significance to the issues on remand.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100016