01A31406_r
09-08-2003
Walter E. Ullmayer, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Appeal No. 01A31406 Agency Nos. PE-FY99-01, PE-FY99-13 Hearing Nos. 370-99-X2560, 370-AO-X2231
Walter E. Ullmayer v. Department of Defense
01A31406
September 8, 2003
.
Walter E. Ullmayer,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Appeal No. 01A31406
Agency Nos. PE-FY99-01, PE-FY99-13
Hearing Nos. 370-99-X2560, 370-AO-X2231
DECISION
Complainant filed an appeal with this Commission from a final order by
the agency dated November 20, 2002, fully implementing the September
23, 2002 decision of an EEOC Administrative Judge (AJ), dismissing
complainant's complaints.
The record reveals that complainant filed two complaints of
employment discrimination under Agency Nos. PE-FY99-01, PE-FY99-13.
After investigation of the complainants, complainant requested a hearing
before an AJ. On August 26, 2002, a hearing was scheduled before an AJ.
The record contains a copy of the August 26, 2002 hearing transcript in
which the AJ notes that the two complaints at issue have been settled.
The transcript provides that the parties settle the cases �for a monetary
amount of $50,000.00, a check to be cut within 90 days of execution of
the settlement and sent to [complainant] without any taxes or other
withdrawals.� Further, it stated that �the parties agree that the
basic boilerplate language is not problematic, and it will have the
information about the standard confidentiality of waivers and releases,
the Agency's nonadmission of discrimination, and the usual language.�
The transcript stated that the parties plan to get an actual settlement
agreement written up in a week but �at this time, they would like to put
on the record their agreement.� The transcript reveals that the AJ asked
both complainant and the agency representative if they agree to settle
the two cases according to the terms set forth in the record, to which
both complainant and the agency representative responded affirmatively.
By Order dated September 23, 2002, the AJ dismissed Agency Nos.
PE-FY99-01, PE-FY99-13, on the ground that they were settled.
By letter to the agency dated October 3, 2002, complainant stated that
�[a]fter much deliberation, I have decided not to accept the Settlement
Agreement submitted by the Agency Representative.� Complainant requested
that the two cases be reinstated.
The agency issued a final order dated November 20, 2002, fully
implementing the AJ's September 23, 2002 Order dismissing complainant's
complaints on the grounds that they were settled. The agency informed
complainant that he can either move forward with the processing of
the settlement that was agreed to at the August 26, 2002 hearing or
alternatively if he declined to execute the settlement agreement, his
complaints were dismissed and he could file an appeal with the EEOC.
The agency included a copy of the settlement agreement and informed
complainant that if he agreed to execute the agreement, he should sign
the agreement within 15 calendar days of his receipt of the notice and
return it to the agency's EEO Office.
The record reveals that a voucher was prepared on December 10, 2002,
for payment of $50,000,00 to complainant. Further, the record shows
that payment in the amount of $50,000.00 was distributed to complaint
via Check Number 97036774 on December 16, 2002.
On December 30, 2002, complainant filed the present appeal with this
Commission from the agency's November 20, 2002, dismissing his complaints.
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). EEOC Regulation 29 C.F.R. � 1614.603
requires that any settlement reached shall be in writing and signed by
both parties.
The Commission has upheld the validity of an unwritten settlement
agreement, where there is a verbal agreement reached during a hearing
before an AJ. See Acree v. Department of the Navy, EEOC Request
No. 059900784 (October 4, 1990). In upholding the validity of the
oral agreement in Acree, the Commission relied on the fact that the
hearing transcript evidenced the agreement between the parties. Id.
The requirement that the agreement be entered into a hearing transcript is
central to the finding that the agreement is binding. See Hilliard-Harold
v. United States Postal Service, EEOC Appeal No. 01990355 (December 17,
1999) (citing Newman v. Department of the Navy, EEOC Request No. 05930458
(July 1, 1993).
Upon review, we find that there was a legally binding settlement
agreement. In the present case
we find that the hearing transcript evidenced the intent of the parties.
Although the settlement agreement was not reduced to writing, we find
that this was not a necessity to bind the parties but a mere formality
since the terms of the agreement were clearly ascertainable and agreed
to by both parties before the AJ. The hearing transcript shows that
the terms of the agreement were simple and clear - complainant was to
withdraw his EEO complaint and the agency was to pay him $50,000.00.
There was no further consideration in the agreement. Additionally, the
Commission finds no evidence that the agreement should be set aside due
to duress or bad faith. Furthermore, we note that the record discloses
that the agency issued complainant a check on December 16, 2002, in the
amount of $50,000.00 in accordance with the agreement.
Accordingly, the agency's final order is AFFIRMED.
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
September 8, 2003
__________________
Date