05A20587
01-03-2003
Victoria Franke, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Victoria Franke v. Department of Transportation
05A20587
January 3, 2003
.
Victoria Franke,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A20587
Appeal No. 01A11353
Agency Nos. DOT 6-96-052, DOT 6-96-052R, DOT 6-97-6084
Hearing Nos. 370-98-2499X, 370-98-2500X, 370-98-2551X
DECISION ON REQUEST FOR RECONSIDERATION
On April 2, 2002, the Department of Transportation (agency) timely
initiated a request to the Equal Employment Opportunity Commission
(the Commission or EEOC) to reconsider the decision in Victoria Franke
v. Department of Transportation, EEOC Appeal No. 01A11353 (March 6, 2002).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. � 1614.405(b).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have a
substantial impact on the policies, practices or operations of the agency.
Id. For the reasons set forth herein, the agency's request is granted.
BACKGROUND
In the previous decision, the Commission reversed the agency's
determination that a settlement agreement achieved by the parties
on September 7, 2000 was valid and enforceable. The Commission
found that the document entitled, "Notice/Order" was essentially, an
"agreement to agree in the future," not an enforceable agreement, and
thus, when complainant later communicated her rejection of the written
memorialization of the agreed terms ("the Supplement" signed by the agency
on September 15, 2000), no valid agreement between the parties existed.
On request for reconsideration, the agency argues, among other things,
that complainant assented to the terms of the settlement as mirrored
by both the September 7, 2000 Notice/Order and the September 15, 2000
Supplement, despite her revocation of the Supplement on September 14,
2000, when two months later, she accepted and negotiated the agency's
check for $20,000, which sum was specifically paid in accordance with
the terms of settlement. At a minimum, the agency contends that
complainant's return of the tendered funds is a condition precedent to
reinstatement of complainant's complaint. Upon review of the formation
of the parties' agreement with respect to the Supplement, as highlighted
by the agency on request for reconsideration, the Commission finds that
the parties achieved an enforceable settlement agreement as of November
20, 2000. The Commission finds that the agency's request meets the
requirements of 29 C.F.R. � 1614.405(b), and therefore grants the
agency's request.
ANALYSIS
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. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).
The Commission acknowledges that following complainant's revocation of
the Supplement on September 14, 2000, the agency continued to take steps
to fulfill its obligations under the proposed terms of the Supplement,
despite the absence of having the formal document signed by complainant.
We find persuasive the sequence of complainant's conduct. Complainant
accepted the agency's payment of $20,000 on November 20, 2000, some
two months after her revocation. We find complainant effectively
nullified her revocation and ratified the Supplement. In addition,
the agency clearly acted to its detriment in reliance upon the terms of
the Supplement. We note that complainant's acceptance of the agency's
payment, coupled with the filing of her appeal ten days later on November
30, 2000, (requesting reinstatement of her complaint), demonstrated
her intention to both retain the benefits of the bargain, and appeal
to the Commission, claiming the agency has breached the September 7,
2000 agreement. Complainant thus acted as if the parties had a valid,
enforceable agreement.
Courts addressing the analogous issue involving ratification of a
release have held that: "A party cannot be permitted to retain the
benefits received under a contract and at the same time escape the
obligations imposed by the contract. ... If a releasor, therefore,
retains the consideration after learning that the release is voidable,
her continued retention of the benefits constitutes a ratification of
the release." (Citations omitted). Grillet v. Sears, Roebuck & Co.,
927 F.2d 217 (5th Cir. 1991); see also Haslach v. Security Pacific Bank
Oregon, 57 FEP Cases 702 (D.Or. 1991) ("this retention of the benefit
is sufficient to amount to a ratification of the release agreement").
Having found an enforceable agreement to exist between the parties,
the Commission turns now to address the issue of the agency's alleged
breach raised in complainant's initial appeal.
BREACH OF THE SETTLEMENT AGREEMENT
The September 15, 2000 settlement agreement, provided for the following,
in pertinent part:
Non-Opposition to Workers' Compensation Requests.
The Agency shall not oppose Complainant's requests to the U.S. Department
of Labor Office of Workers' Compensation Programs for an extension of
benefits to enable Complainant to seek to achieve 20 years credit for
federal service before electing to take her disability retirement.
Retroactive Promotion of Complainant.
The Agency shall retroactively promote Complainant to the grade of
GS-13 as of June 14, 1992, at the step she would have received at that
time in accordance with normal promotion practices. The Complainant
is entitled to be awarded within grade step increases in accordance
with normal personnel practices. The Complainant specifically waives
demand and entitlement to any and all additional compensation for the
difference in wage payment between the grades/steps to and from which
she is being retroactively promoted for the period of June 14, 1992 to
October 10, 1995, or the effective date of her disability retirement.
For purposes of any federal pay calculations for retirement or disability
purposes, Complainant's pay level will be computed in accordance with her
promoted grade and step level. The Agency promises to act diligently in
accomplishing the retroactive promotion, but the Complainant understands
that it will take several weeks for the agency to make the retroactive
promotion effective.
Payment of Lump Sum.
By October 16, 2000, the Agency shall pay to the Complainant, through her
attorney, ..., the total sum of $20,000 (twenty thousand dollars). . . .
In her December 30, 2000 statement in support of appeal (01A11353),
complainant stated that the U.S. Social Security Administration had not
accepted the Standard Form 50's prepared by the agency for retroactive
promotion and step increases and that her retirement benefits will not
be increased without corrected W-2 forms. Complainant also complained
that she had received no increase in workers' compensation benefits
as contemplated by the parties. Lastly, complainant states that the
Supplement is incomplete and the claim for Reactive Airways Disease is
incomplete as well. <1>
Submitted with the agency's instant Request for Reconsideration is
a declaration, by the agency's former Chief, Division of Personnel
Operations, and current Director, Office of Human Resources, dated April
12, 2002. In his declaration, the Director states that complainant's
retroactive promotions have been achieved for the purpose of her
retirement benefits and that the agency has not opposed her workers'
compensation claim. Lastly, the Director declares that he ensured
the agency accomplished the lump sum payment of $20,000 to complainant.
Accompanying the Director's declaration are request forms for "corrected
W-2 forms" dated December 21, 2000.
The Commission observes record evidence that confirms the agency has
complied with the terms of the settlement. By letter dated July 2,
2002, the Office of Personnel Management verified that complainant has
received the retroactive promotions and consequential gross annuity
adjustment. The record also includes a copy of a U.S. Treasury check
number 3091 02979140, in the amount of $20,000, endorsed for negotiation
by complainant to her counsel of record.
After review of the record, the statements in support and the
documentation submitted by both parties on the issue of breach, we are
persuaded that no breach of the September 15, 2000 settlement agreement
(the Supplement) has occurred.
CONCLUSION
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the agency's request meets the criteria of 29 C.F.R. � 1614.405(b);
and it is the decision of the Commission to GRANT the agency's request.
The decision of the Commission in Appeal No. 01A11353 is REVERSED.
Moreover, the Commission finds that no breach of the applicable settlement
agreement occurred. The parties may request reconsideration from the
Commission's decision with regard to breach of the settlement agreement,
as provided below.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
January 3, 2003
__________________
Date
1Complainant submitted no statement in response
to the agency's Request for Reconsideration.