01a54710
11-12-2005
Tequila Jackson, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Tequila Jackson v. Department of the Treasury
01A54710
November 12, 2005
.
Tequila Jackson,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A54710
Agency No. 032427T
Hearing No. 110-2004-00109X
DECISION
Complainant filed a timely appeal with this Commission from a final order
by the agency dated October 13, 2004, upholding the Administrative Judge's
order dismissing complainant's complaint. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The parties entered into a settlement agreement on the record of
proceedings before the Administrative Judge (AJ) at the time set
for hearing of Jackson v. Department of Transportation, EEOC Hearing
No. 110-2004-00109X. The oral settlement agreement provided, in pertinent
part, that:
(1) complainant will never seek or accept employment in any capacity
with the Internal Revenue Service (IRS) in any office;
(2) complainant will not challenge her termination/resignation in any
administrative or judicial forum;
(3) complainant agrees to withdraw her complaint;
(4) the agency will pay complainant a total of five thousand dollars
and there would be no attorney's fees, costs, damages, back pay or any
other monies; and
(5) the settlement agreement is subject to review by the
Discrimination Complainant Review Unit (DCRU).
The reporter's transcript subsequently contains the following closing
comments exchanged by the parties and the AJ after discussion and
agreement regarding submission of a proposed writing by the agency to
complainant:
AJ: Now, Mrs. Jackson, are these terms acceptable to you?
Complainant: Yes.
AJ: Do you have any questions or comments?
Complainant: No.
Subsequently, the AJ stated on the record that the case was settled.
The agency tendered a proposed settlement agreement to complainant.
By letter to the AJ dated June 15, 2004, complainant refused to sign
the settlement agreement stating that she did not agree with the terms
of the agreement. She stated that she agreed only not to work for the
IRS in the State of Georgia. Not working at the IRS in all 50 states,
she contended was more than she had agreed. Further, she asserted that
she did not agree to have the agency make the check out to her attorney.
She stated that she still did not have a clear understanding as to the
terms of the settlement agreement.
The AJ issued a show cause order as to why the settlement agreement should
not be revised and the complaint dismissed. Specifically, with respect
to the settlement check being issued to her attorney, the AJ found that
complainant did not specifically agree to this provision but that it was
a minor ambiguity that did not void the entire settlement agreement.
The AJ stated that he intended the revise the order to provide that
the settlement check shall be issued jointly to the complainant and her
attorney to resolve any billing issues. Regarding complainant's other
arguments about the terms of the settlement agreement, the AJ found that
complainant was attempting to renegotiate the settlement agreement and
overruled her objections. Thereafter, on June 30, 2004, the AJ issued
an Order of Dismissal. In the Order of Dismissal, the AJ represented
that complainant had responded to the show cause order by reiterating her
contention that the settlement agreement was inadequate but not objecting
to the AJ's proposal regarding the issuance of the settlement check.
Consequently, the AJ dismissed her complaint, stating that the time to
determine whether the settlement agreement was adequate was before one
agrees to it. The AJ ordered the agency to tender the revised settlement
agreement to complainant and comply with the provisions after she has
signed the agreement.
On appeal, complainant reiterates the arguments she made to the AJ
concerning the fairness of the settlement agreement. The agency contends
that the oral agreement reached in front of the AJ was valid and that
complainant's appeal is based only upon the fact that complainant regrets
entering into the settlement agreement.
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 previously upheld oral settlement agreements reached
before its Administrative Judges and transcribed by court reporters. See
Acree v. Department of the Navy, EEOC Request No. 05900784 (October
4, 1990) (upholding a settlement agreement reached before an AJ and
transcribed by the court reporter); Rouse v. Department of the Navy,
EEOC Appeal No. 01912573 (September 6, 1991) (applying Acree to uphold
an oral agreement because it was formed in the presence of an AJ and
transcribed by a court reporter).
Here, the oral settlement agreement between the agency and the complainant
was valid as it was entered into in the presence of an AJ and transcribed
by a court reporter. The terms of the oral agreement, in pertinent part,
specifically stated that complainant was to be paid $5,000.00 in exchange
for her dropping her EEO complaint and agreeing not to ever apply or
work for the IRS in any office. Complainant's contention that she had
only agreed to waive her right to apply or work for the IRS in Georgia
is not supported by the transcript. The plain and unambiguous reading
of complainant's oral settlement agreement requires that complainant
never apply for a position or work at any IRS location. Post settlement
apprehension regarding the terms of the settlement agreement, is not
sufficient to compel the exercise of our discretion to permit voiding
of the oral settlement agreement.
With respect to complainant's contention that the $5,000.00 check should
have been payable to her, we find that the agency failed to correctly
obey the AJ's order when it reduced the terms of the oral settlement
agreement to writing. The oral agreement provided that complainant
would be paid the $5,000.00. The written settlement agreement stated,
in pertinent part, that the agency would pay the complainant $5,000.00
and make the check payable to her attorney. The AJ in his June 30, 2004
Order of Dismissal specifically noted that complainant did not orally
agree to having the check made payable to her attorney. The AJ proposed
that the check be made payable to both complainant and her attorney.
The record does not establish that complainant objected to the AJ's
proposal, and the AJ ordered the agency to revise the written settlement
agreement accordingly. Therefore, we direct the agency to take action
consistent with the Order below. The dismissal of the complaint giving
rise to this appeal is AFFIRMED.
ORDER
The agency is ORDERED to revise the settlement agreement to reflect
that the $5,000.00 check will be made payable to both complainant and
her attorney, and to provide the Compliance Officer with a copy of the
revised settlement agreement and evidence indicating that it was sent
to both complainant and her attorney.
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:
November 12, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations