0120161695
04-24-2018
Adam D,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adam D,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161695
Agency No. ARJACKSON15JUL02779
DECISION
On April 26, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated April 18, 2016, finding that it complied with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to his complaint, Complainant was employed by the Agency as a Training Specialist (Facilitator), GS-1712-09 at the United States Army Master Resilience School, Victory College, in Fort Jackson, South Carolina.
On August 5, 2015, Complainant contacted an equal employment opportunity (EEO) counselor. The EEO counselor reported that Complainant alleged he was discriminated against based on his sex and reprisal for filing in August 2015, an "EEO complaint" when he was sexually harassed by Coworker 1 (female) and was given a memorandum of concern by his supervisor. The "EEO complaint" refers to Complainant initiating EEO counseling. Complaint file, at 136. In an "affidavit" he submitted in EEO counseling, Complainant alleged, in addition to the above, that Coworker 1 repeatedly referred to him as "Old Man and/or Old retiree" and wrote therein that he was discriminated against based on "age, as well as being sexually harassed."2 Thereafter, on September 8, 2015, Complainant filed a formal EEO complaint. While he checked off complaint form boxes to indicate discrimination based on his sex and reprisal, he incorporated a September 7, 2015 "affidavit" wherein he wrote "I was discriminated against based on my sex (Male), race (Black), Age (54) ...and in retaliation for filing [a] prior complaint..." and identified the "prior... complaint" as occurring on August 5, 2015. Complaint file, at 89, 91.
On December 18, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement reads, in pertinent part:
...Agency Case No.: ARJACKSON15JUL02779
This agreement arises out of the complaint of alleged discrimination initiated on September 8, 2015, alleging discrimination based on sex (Male) and reprisal (based on current EEO activity)....
3. The Army agrees to:
c. Pay Complainant a lump sum in the amount of $8,682.76. The Army will complete all required paperwork of the lump sum within 45 days of the effective date of his resignation.
d. Compensate Complainant for his accrued annual leave hours in the amount of $2,378.34, which will be paid separately from the lump sum payment....
j. Not issue a proposed removal action for the alleged misconduct of the Complainant that allegedly occurred in October and November 2015, which relates to or will arise out of issues related to this EEO case.
4. The Complainant agrees to...
c. By the close of business on 18 December 2015, submit a written resignation to become effective on 31 January 2016... for medical reasons....
5. .... The Agency's processing of the... agreed actions in paragraph 3 will be completed within 45 days of the effective date of Complainant's resignation. Both parties acknowledge that after the Agency completes its portion of the processing of the lump sum and accrued annual leave payments to Complainant, the final processing work will be completed by DFAS [Defense Finance and Accounting Service], a separate defense Agency that is not a party to this agreement....
7. Complainant has alleged sex and reprisal discrimination in this matter. Pursuant to the provisions of Title VII of the Civil Rights Act of 1964, as amended, concerning the issues, claims or facts contained in the subject precomplaint/complaint....
e. That she/he was given a reasonable period of time within which to consider this Agreement before signing it;
f. That she/he was advised to consult with her/his attorney before executing the Agreement.;
g. That she/he has been offered 7 days to revoke this Agreement from the date of signature. However, Complainant agrees to waive the 7 day revocation period....
The above items have been explained to the Complainant. By signing today, the Complainant is acknowledging that he has consulted whoever he has deemed necessary and is agreeing to all the terms and agreements as set forth.
8. Complainant's signature on this agreement constitutes a full and complete settlement of any and all issues and claims arising from the circumstances of the aforementioned EEO precomplaint/complaint.
By letter to the Agency dated March 18, 2016, Complainant alleged that it breached the settlement agreement because he had not received payment of the lump sum of $8,682.76 nor the separate payment of $2,378.34 for his accrued annual leave, as agreed, and more than 45 days elapsed since the effective date of his resignation. Complainant requested that the terms of the settlement agreement be terminated and his EEO complaint reinstated.
The Agency's EEO function asked management to respond to this breach contention. A labor attorney with the Office of the Staff Judge Advocate who was a signatory to the settlement agreement responded that the Agency submitted the lump sum of $8,682.76 for payment to DFAS on March 3, 2016, within 45 days of the effective date of Complainant's resignation, as agreed, with documentation thereof. She pointed to the language in the settlement agreement that DFAS was responsible for making this payment but was not a party thereto, and wrote that the Agency has no authority over DFAS and its processing times once it submits the paperwork. The labor attorney submitted evidence that the Agency's budget people were tracking daily whether DFAS made this payment, and wrote that the Agency was told payment may be forthcoming in the next two weeks (i.e., by April 22, 2016).
In its April 18, 2016 FAD, the Agency recounted that in addition to the above, management provided documentation showing payment to Complainant for his annual leave in the amount of $3,150.92 (more than the $2,378.34 for leave recited in the settlement agreement) at the pay period ending February 6, 2016. The record does not contain a copy of this documentation.
The Agency concluded in its FAD that it did not breach the settlement agreement since management submitted the paperwork to DFAS for payment of the lump sum within 45 days of the effective date of Complainant's resignation, and submitted the necessary paperwork for payment of Complainant's annual leave within the same period. It did not state if DFAS paid the lump sum.
In its FAD, the Agency also wrote that Complainant claimed that he signed the settlement agreement under extreme duress. The record does not contain documentation of the submission Complainant made on this. According to the FAD, Complainant asserted he was informed prior to "the interview process of his EEO complaint" that he could resign with severance pay or be terminated, and in the settlement negotiation was told he needed to make the decision at that time and forfeit his request for a legal representative to receive a monetary lump sum. The Agency concluded that Complainant agreed in the settlement agreement that he was given a reasonable time to consider the agreement, and acknowledged therein that he consulted whoever he deemed necessary and is agreeing to all terms therein. The instant appeal followed.
Complainant writes that he was moved to another work organization effective October 19, 2015, and later placed on administrative leave without being formally charged with any offense. He concedes that management suggested he verbally assaulted and made intimidating threats to his supervisor. He contends that thereafter, at the December 18, 2015 settlement negotiation, the Director of Victory College, a signatory to the settlement agreement, told him he had the option of resigning or being fired. He asserts that the Director verbally agreed in the settlement negotiation that he would receive all his money "sooner than the 45" day[s]," and he did not receive the settlement money as promised.
In opposition to the appeal, the Agency reiterates the findings made in the FAD. The Agency argues that while Complainant contends he was coerced by being told there was a proposed removal action being processed against him, he knew before that there was something in the works regarding his position. The Agency submits a memorandum for record by the Director of Victory College representing that while a draft copy of the settlement agreement contained an opportunity to revoke period, due to conflicts with the holiday block leave period he asked Complainant to make his decision a firm one with no opportunity to revoke, and Complainant agreed to sign in order for the Director to accept the final agreement. Regarding Complainant's contention about a verbal side agreement with the Director, the Agency points to the language in the settlement agreement that no other agreements are binding unless signed by all parties, and submits the above memorandum where the Director wrote that there was no agreement beyond the written settlement agreement.
In a sur-reply, Complainant counters that he was placed under extreme duress by the ultimatum to resign or be terminated, that this was introduced unexpectedly in the settlement negotiation with no opportunity to consult anyone. He contends that the argument that he should have known his job was in jeopardy was false. He explains that when he was placed on administrative leave, which was lengthy, he was told this was done because someone else needed his workspace due to a renovation.
ANALYSIS AND FINDINGS
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. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties on the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Validity of the Settlement Agreement under Title VII
(Claims of discrimination based on sex, race, and reprisal for prior protected activity under Title VII)
When coercion, misrepresentation, or mistake occurs during the formation of the contract, assent to the agreement is impossible, and the Commission will find the contract void. The Commission examines coercion claims with much scrutiny. The party raising the defense of coercion must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat. Such a threat may be expressed, implied or inferred from words or conduct, and must convey an intention to cause harm or loss. Cannella v. Department of Veterans Affairs, EEOC Appeal No. 01995444 (December 5, 2000). Complainant has not met this standard.
While Complainant raised the threat of his removal as a source of his duress, we find, based on a preponderance of the evidence, that this was not an improper threat because the Agency was in the process of proposing his removal prior to the settlement negotiation. In opposition to the appeal, the Agency submits a draft "Notice of Proposed Removal" to Complainant with the incomplete date of "_ December 2015." A review thereof indicates that it was not a rough draft, rather it was a polished product with formal charges and numerous supporting specifications. All that was missing from the body of the document was the complete date and the signature of the identified expected issuer. The draft proposal contains an appendix which indicates there are supporting documents numbered 1 - 26, including sworn statements by Complainant's first and third line supervisors and others, records of Complainant previously being counseled for misconduct and attendance, management memorandums for record regarding Complainant failing to follow instructions and other matters, and so forth. Creating such a polished document with extensive supporting documentation is time consuming, and the Agency would have no reason to do so at any time other than before the settlement negotiation and agreement occurred on December 18, 2016. The partial date of "_ December 2016," further corroborates that it was in process prior to the negotiation.
Given this, we find that the Director telling Complainant at the settlement negotiation that his choice was to be terminated or reign, while unpleasant, was not unreasonable or incorrect. Betts v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120091969 (Oct. 14, 2009) (while the agency allegedly starkly told the complainant in mediation that if she did not sign the settlement agreement her termination letter would be placed in her official personnel file which would adversely impact her job prospects, especially with the federal government, the agency's warning was sufficiently grounded in truth not to be unreasonable. While this was unpleasant, it was not coercion). Complainant further argues that he was coerced because he was unexpectedly presented with the above choice with no opportunity to consult anyone. This does not rise to the level of coercion. Complainant was free to walk away from the negotiation and challenge a forthcoming proposed removal, or seek to negotiate at a later date. He chose to settle his EEO complaint. Id. (while agency personnel allegedly exhibited pronounced impatience, and perhaps wanted to move things along in the meditation, this pressure did not amount to coercion. The complainant was free to break off the mediation).
Accordingly, the settlement agreement is valid on the closure of Complainant's Title VII claims.
Validity of the Settlement Agreement under the ADEA
(Claims of discrimination based on age and reprisal for prior protected activity under the ADEA)3
While on the formal complaint form Complainant did not check the box indicating he was alleging age discrimination, he explicitly alleged age discrimination in an "affidavit" he wrote that he incorporated into the complaint. Complainant checked the box in his formal complaint indicating he alleged reprisal discrimination, and the record shows he had prior protected EEO activity under the ADEA - during EEO counseling on the instant complaint and prior to that - his opposition to alleged discrimination by Coworker 1.
The OWBPA, which amended the ADEA effective October 16, 1990, provides that a waiver of ADEA claims is not considered knowing and voluntary unless, at a minimum: (1) the waiver is clearly written from the viewpoint of the complainant; (2) the waiver specifically refers to rights or claims under the ADEA; (3) the complainant does not waive rights or claims arising following execution of the waiver; (4) valuable consideration is given in exchange for the wavier; (5) the complainant is advised in writing to consult with an attorney prior to executing the agreement; and (6) the complainant is given a reasonable period of time in which to consider the agreement. Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing 29 U.S.C � 626(f)(2)).
We need not decide whether under the OWBPA, presenting a pro se Complainant with a draft settlement agreement in a settlement negotiation that occurred over part of one day with no opportunity to consult anyone is considered a knowing and voluntary waiver of his ADEA rights, i.e., constituted a reasonable time to consider the agreement. Under the statutory terms of the OWBPA, Complainant's waiver of his ADEA rights is not considered knowing or voluntary because the settlement agreement (waiver) did not specifically refer to rights or claims under the ADEA.
Accordingly, Complainant's waiver of his ADEA rights are reversed.
Compliance with the Settlement Agreement
Based on a reading of the settlement agreement, we agree with the Agency that it complied with the term on the $8,682.76 lump sum by providing DFAS the paperwork to make payment within 45 days after the effective date of Complainant's termination, as agreed.
Nevertheless, a fair reading of the settlement agreement is that Complainant would at some point receive this payment. The record contains no documentation that Complainant has received his lump sum payment. Further, while the Agency in its FAD represented that Complainant received payment for the monetary value of his annual leave at the pay period ending on February 6, 2016 (within 45 calendar days after the effective date of his termination), the record contains no documentation of this. While Complainant does not write on appeal that he has not received these payments, in the absence of confirmation by him, which he does not give, we cannot find that these payments have been made.
Accordingly, based on the record as it now stands, we are unable to determine if the Agency has complied with the payment portion of the settlement agreement discussed herein.
Closure of Title VII Claims
While the settlement agreement is invalid regarding Complainant's ADEA claims, it is still valid regarding his Title VII claims. What this means, without considering any other factors, is that because Complainant requests that his complaint be reinstated, his ADEA claims are to be automatically reinstated, but not his Title VII claims. See Sheehy v. National Security Agency, EEOC Request No. 0520100403 (Feb. 27, 2012).
But the record does not show, at this point, whether DFAS/the Agency, pursuant to the settlement agreement, completed payments to Complainant of his lump sum and the monetary value of his accrued annual leave. Given this, and to avoid adding more time to already extended litigation on Complainant's breach claim, we rule as follows. If Complainant has already been paid his lump sum of $8,682.76 and the monetary value for his accrued annual leave, the Agency has complied with the settlement agreement. If payment for both these things has not already been made, DFAS/the Agency need not make payment since this long delay would rise to the level of breach and because as remedy for this breach Complainant chose the regulatory option of invalidating the settlement agreement and having his EEO complaint reinstated. 29 C.F.R. � 1614.504(a).
The Agency Must Reinstate the ADEA claims in Complainant's Complaint Without Preconditions
Because the settlement agreement is invalid under the ADEA, and Complainant requests reinstatement of his complaint, the Agency must reinstate his complaint as ordered below. Specifically, regarding his ADEA claims, under the OWBPA Complainant's receipt of the benefits of the settlement agreement and failure to tender them back to the Agency does not operate to waive his ADEA claim since the statutory requirement of a knowing waiver was not met. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426 - 28 (1998). While this statutory based legal principle does not apply to her Title VII claim, requiring Complainant to tender back would undermine the OWPBA, and hence we will not require it. Smith v. Department of Veterans Affairs, EEOC Appeal No. 0120130700 (May 9, 2013), citing Sheehy v. National Security Agency, EEOC Request Nos. 0520100403 (Feb. 27, 2012) (waiver of ADEA claims under settlement agreement voided under the OWBPA, but the settlement agreement waiver was not defective as to Title VII and Rehabilitation Act claims. To go forward with her ADEA claims Complainant was not required to tender back benefits received under settlement agreement, including a retroactive promotion, back pay, and a lump sum payment); McMahon v. Department of Homeland Security (Customs and Border Protection), EEOC Appeal No. 0120112007 (April 11, 2012) (waiver of ADEA claims under settlement agreement voided under the OWBPA, but not her Title VII claims. To go forward with her ADEA claims, Complainant was not required to tender back benefits received under the settlement agreement, including an offer of employment).
If Complainant eventually prevails on his claims, the Agency may seek to reduce his award by the benefits he received under the settlement agreement. See Sheehy, EEOC Request No. 0520100403, and McMahon, EEOC Appeal No. 0120112007.
The FAD is MODIFIED.
ORDER
Within thirty (30) calendar days of the date the date of this decision, the Agency shall issue a letter to Complainant notifying him that the ADEA claims in his complaint are reinstated from the point processing ceased, i.e., resume the EEO investigation. If DFAS or the Agency has not already made payments to Complainant for both his lump sum of $8,682.76 and the monetary value of his accrued annual leave, the above letter shall also notify Complainant that his Title VII claims are reinstated. If both referenced payments were made to Complainant prior to the date of this decision, his Title VII claims will not be reinstated but will be considered fully resolved through settlement.
The Agency must submit evidence of compliance as referenced below. The evidence shall include the above letter to Complainant, which must specify whether his Title VII and ADEA claims have been reinstated, or just his ADEA claims. If the Agency does not reinstate the Title VII claims, evidence of compliance must also include documentation that payments to Complainant for his lump sum of $8,682.76 and monetary value of his accrued annual leave were made prior to the date of this decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In EEO counseling Complainant submitted a statement by Coworker 1 to his first line supervisor disputing Complainant's allegations against her of "Sexual Harassment... and age discrimination)." Age employment discrimination against those aged 40 and over is prohibited by the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
3 Claims of reprisal for prior ADEA EEO activity fall within the ambit of the ADEA and the Older Workers' Benefit Protection Act (OWPBA). Campo v. United States Postal Service, EEOC Petition No. 03A20012 (Aug. 27, 2002).
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