01A15340
03-23-2003
Robert H. Page, Complainant, v. Kenneth Y. Tomlinson, Chairman Broadcasting Board of Governors Agency.
Robert H. Page v. Broadcasting Board of Governors
01A15340
March 23, 2003
.
Robert H. Page,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman
Broadcasting Board of Governors
Agency.
Appeal No. 01A15340
Agency No. OCR-00-07
Hearing No. 100-A1-7087X
DECISION
Robert H. Page (complainant) timely initiated an appeal from a
final agency order concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission vacates the agency's finding of no discrimination and
reverses the agency's de facto finding of no settlement breach.
The record reveals that during the relevant time, complainant was employed
as a Deputy Director, Technical Operations Directorate in WORLDNET TV at
the agency's Washington, D.C. facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on February 14, 2000, alleging
that he was discriminated against on the bases of race (African-American)
and reprisal for prior EEO activity (under Title VII) when his position
was classified at the GS-14 level rather than the GS-15 level.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race discrimination, noting that there was no valid comparative
evidence of any similarly situated person who was treated differently.
In so finding, the AJ noted that there was no evidence that the positions
of the other deputy directors in WORLDNET were substantially similar to
complainant's position or that those positions were graded at higher
levels because of the race of the incumbents. The AJ further noted
that complainant's position was downgraded from the GS-15 to the GS-14
level before he held it and that at that point it was occupied by a
White individual. The AJ further concluded that complainant failed to
establish a prima facie case of retaliation in that he did not establish
that there was a causal connection between his prior EEO activity and
the classification decision.
The AJ further found that complainant's arguments in response to the
Notice of Proposed Summary Judgment were without merit. She noted, among
other things, that although complainant argued that the investigative
record was inadequate, a 70-day period of discovery had been authorized
and there was no indication in the record that the agency failed to
cooperate in discovery.
The AJ concluded that there was no evidence from which to infer that
the classification decision was triggered by complainant's prior EEO
activity or race and granted summary judgment in favor of the agency.
The agency's final action implemented the AJ's decision.
On appeal, complainant raises no contentions regarding the AJ's decision,
but instead argues that his complaint was settled on August 1, 2001,
when he accepted the agency's settlement offer of $2,500.00. He contends
that the agency breached this agreement when it refused to pay him and,
instead, adopted the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
After a careful review of the record, we note that although we have
serious concerns about the appropriateness of issuing a decision on
summary judgment in this case, we do not reach this issue because we find
that the parties entered into a binding settlement agreement on August 1,
2001, which the agency breached.
The record establishes the following relevant facts. In a letter dated
May 2, 2001, complainant, through his attorney (CA), contacted the agency
representative (AR) and indicated a willingness to settle EEOC Case
No. 100-A1-7078x for $25,000. AR responded in writing July 3, 2001,
noting that the agency was prepared to offer $2,500 as a settlement
in order to avoid the costs associated with a hearing on the matter.
On August 1, 2001, CA wrote a second letter informing AR that complainant
was willing to accept $2,500.00 to settle the case, again identifying
the case by EEOC Case Number. AR faxed a letter back, indicating that
he would prepare the settlement agreement and fax it to CA for approval.
However, on August 3, 2001, AR again contacted CA in writing. In this
August 3, 2001 letter, AR recited the above sequence of events, but then
noted that the agency had received a copy of the Administrative Judge's
decision in EEOC. Case No. 100-A1-7087X, finding no discrimination.
AR concluded that it was the agency's position that the parties did �not
have a deal.�
In response to complainant's appeal, the agency acknowledges that all
of the above-described written communications occurred, but argues that
the correspondence does not constitute a binding settlement agreement.
The agency notes that in order to be binding a settlement agreement must
be in writing, signed by both parties, and identify the claims resolved
and contends that the correspondence between CA and AR does not meet
the second and third requirements.
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.
In order for a settlement agreement between parties in an administrative
EEO proceeding to be enforceable, the agreement must, in most cases, be in
writing and signed by both parties and must identify the claims resolved.
See 29 C.F.R. � 1614.603.
In the case at hand, we find that the correspondence exchanged by CA and
AR meets these requirements. Although there is no specific document
designated as a settlement agreement, the agency did make a written
offer to settle for $2,500.00, signed by AR, which identified the claim
to be resolved by EEOC case number. Moreover, complainant accepted this
offer on August 1, 2001, in a letter that again identified the claim to
be resolved by EEOC Case Number and was signed by CA. We decline to
find that the absence of a single document specifically designated as the
settlement agreement renders the agreement unenforceable. The agreement
was in writing, was signed by the parties and identified the claim to
be resolved.
Accordingly, we find that the parties entered into a valid and binding
settlement agreement on August 1, 2001, in which the parties agreed to
settle the claim identified by EEOC Case No. 100-A1-7087X in return for
$2,500 payable to complainant. We note that by letter dated August 3,
2001, the agency indicated its intent to breach this agreement, when
it informed complainant that it would implement the AJ's finding of no
discrimination and that the agency's position was that complainant and the
agency did not have a deal. We construe this August 3, 2001 letter to
be a de facto final agency decision that there was no settlement breach.
Furthermore, it is clear from complainant's statement on appeal and the
agency's brief in response that the agency had not, as of October 3, 2001,
paid the required $2,500.00 and that it has no intention of doing so.
We find, therefore, that the agency breached the settlement agreement.
Accordingly, the agency's finding of no discrimination is VACATED.
The agency's finding of no settlement breach is REVERSED and the agency
is directed to comply with the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue to complainant a check in the amount of
$2,500.00, plus interest from August 1, 2001 through the date payment
is made.
2. The agency shall pay attorney's fees and costs, as directed below.<1>
3. The agency is further directed to submit a report of compliance, as
provided in the statement entitled, "Implementation of the Commission's
Decision."
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
March 23, 2003
Date
1 Having prevailed here on the issue of the
agency's breach of the settlement agreement, complainant is entitled
to an award of attorney's fees. See Martin v. Department of Defense,
EEOC Request No. 05940745 (August 24, 1995).