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07/24/90 FRANCISCO GARZON v. DISTRICT COLUMBIA

July 24, 1990

FRANCISCO GARZON, PETITIONER
v.
DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, RESPONDENT. MARRIOTT CORPORATION, INTERVENOR



Petition for Review of a Decision and Order of the District of Columbia Commission on Human Rights

Rogers, Chief Judge, and Newman and Ferren, Associate Judges.

The opinion of the court was delivered by: Ferren

Francisco Garzon petitions for review of a Final Decision and Order of the District of Columbia Commission on Human Rights granting a motion to enforce a settlement -- based on an oral agreement -- between Garzon and Marriott Corporation. After a hearing on liability, the Commission determined that Marriott unlawfully had discriminated against Garzon, on the basis of gender, in terminating his employment. Before completion of the hearing on damages, however, the parties' attorneys conferred on possible terms of settlement. Garzon, it appears, reluctantly agreed to settle for $18,000 plus attorney's fees. Marriott then drafted its understanding of the settlement agreement. Although providing for payment of $18,000, Marriott's draft failed to provide for payment of Garzon's attorney's fees. The draft also added several clauses which, according to Garzon, were material provisions not discussed during the settlement conference and to which he did not agree.

Marriott moved to enforce the settlement agreement. The Commission granted Marriott's motion, finding that Garzon had agreed to settle for $18,000 and to release Marriott from all liability. The Commission acknowledged that the parties still had "to negotiate the wording of mutually acceptable release," but, by ruling that an enforceable agreement had been reached, the Commission necessarily implied that the parties had agreed to all material forms of the settlement. We cannot agree. A "mutually acceptable release" under the circumstances would have to include material terms which, as far as we can tell from the record, may not yet have been agreed upon. Accordingly, we conclude that the Commission erred in granting a motion for enforcement of what appears on this record to be an unenforceable agreement to agree. We therefore must reverse the agency's decision and remand for further proceedings.

This is not to say, however, that the settlement issue can be resolved on the present record. By ruling on Marriott's motion for enforcement of settlement entirely on the basis of affidavits and correspondence, without a hearing, the Commission did not have sufficient data, including essential demeanor evidence or other indicia of truthfulness essential to resolving material factual disputes. Accordingly, on remand, if Marriott still elects to contend there was an enforceable settlement agreement, the Commission shall afford the parties an evidentiary hearing. If the alleged settlement is not established, the Commission shall assess damages against Marriott either on the basis of the hearing record already completed or after further hearing, in the Commission's discretion.

I.

Marriott hired Garzon in February 1981 as a host in the Washington Marriott Hotel lounge. In April 1981, Marriott promoted Garzon to the position of bartender. On October 28, 1983, Marriott terminated his employment. Garzon filed a complaint against Marriott with the District of Columbia Office on Human Rights on January 6, 1984, alleging sex discrimination in violation of the District of Columbia Human Rights Act, D.C. Code § 1-2512 (a) (1) (1987). On November 14, 1986, in its Final Decision and Order, the Commission ruled in Garzon's favor, concluding that Marriott had unlawfully terminated his employment because he is male. The Commission ordered "that provide such remedy as is determined by subsequent public hearing on damages and attorney's fees to be appropriate and awardable to in accordance with the Act and the Commission's Guidelines For Payment of Compensatory Damages and Attorney's Fees."

The hearing on damages began on February 17, 1988. The next morning, counsel for Marriott and counsel for Garzon met to discuss settlement. Each of the participants has a somewhat different version of what happened next. *fn1 Garzon's attorney, H. Vincent McKnight, Jr., states (in a letter to Garzon dated March 1, 1988): "I recommended settlement. After lengthy Discussions . . ., gave me the authority to settle this case for $18,000 plus attorney's fees. I communicated this to the other side and Marriott agreed." Garzon states (in a letter to the Commission dated April 28, 1989):

The $18,000 damage settlement Mr. McKnight tried to get me to accept was never acceptable to me. Mr. McKnight spent over an hour trying to convince me. At one point during his coercion, he mentioned he might "be able to do something" with his lawyer's fees (to make the settlement more attractive to me).

The reason I finally said "I guess" was that he got up from his chair and said, "I'm going to go ahead and do it" (accept the settlement). If I had been able to think clearly at that point or know my options, I would never even have said "I guess." I certainly did not believe that I was accepting that amount, nor did I believe it to be binding.

Garzon also states in an affidavit that, on February 18, 1988, he was not told about -- nor did he agree to -- terms releasing Marriott from liability arising out of his termination, relinquishing the right to reinstatement, requiring nondisclosure of the terms of the agreement, and establishing liquidated damages in the event of disclosure. Carlton J. Trosclair, attorney for Marriott, states (in an affidavit):

During negotiations, I represented to Mr. McKnight that any settlement would be a total settlement, and that there would be no reinstatement and no disclosure to the media . . . . Mr. McKnight indicated he understood.

Alter about two hours of negotiation, I offered Mr. Garzon's counsel, Mr. McKnight, $18,000 for a total settlement of the case. Mr. McKnight ...


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