Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 4, 2014

0120123021 (E.E.O.C. Apr. 4, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120123021

Agency No. DON 11-65888-00941

Hearing No. 480-2012-00362X

DECISION
Complainant filed a timely appeal with this Commission from a Notice of Dismissal issued by
an EEOC Administrative Judge on the grounds that this matter had been resolved by a
settlement agreement.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative
Support Assistant at the Agency’s work facility in San Diego, California. On May 18, 2011,
Complainant filed a formal EEO complaint wherein she claimed that the Agency discriminated
against her on the bases of her race (African-American), color (black), sex (female) and age
(46) when on January 20, 2011, Complainant learned she had not been selected for the position
of Safety and Health Occupational Specialist.

The complaint was accepted for investigation. Subsequent to the investigation, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). During the discovery
process, Complainant’s representative and the Agency representative engaged in settlement
negotiations, and Complainant’s representative recommended to Complainant that she enter
into a Memorandum of Understanding. The parties entered into a Memorandum of
Understanding on May 11, 2012. The Memorandum of Understanding provided, in pertinent
part, that:

(1) The [Agency] and [Complainant] hereby voluntarily enter into this
Memorandum of Understanding (MOU). The Agency and Complainant agree to
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resolve Equal Employment Opportunity Commission (EEOC) Case No. 480-
2012-00362X/Agency Case No. DON 11-65888-00941 and any amendments
thereto.

(2) In exchange for a dismissal with prejudice of the above referenced action by
Complainant, the Agency shall:

(a) Provide training as agreed in negotiation, including but not limited to OSHA
CFR 29 Safety and follow on Safety Module training as agreed to by the
parties in the settlement agreement.

(b) [The] Production Support Director, agrees to notify Complainant in person
and via electronic mail of the next recruitment for a Safety and Occupational
Health Specialist at Fleet Readiness Center (FRCSW) if such an opportunity
arises in the two years following the execution of the settlement agreement.

(c) The Agency will provide Complainant with resume training as specified in
the settlement agreement.

(3) The parties will enter into a formal settlement agreement within two weeks of
the execution of this MOU. Counsel for the parties shall negotiate the wording
of the settlement agreement in good faith.

(4) This MOU is enforceable by application to the Equal Employment Opportunity
Commission Administrative Judge assigned to this matter.

On May 18, 2012, the Agency forwarded a formal settlement agreement to Complainant’s
representative. Complainant decided not to sign the settlement agreement. The Agency
subsequently submitted the MOU to the AJ for enforcement. On June 27, 2012, the AJ
dismissed the complaint based on the MOU.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was coerced into signing the MOU. According to
Complainant, her representative met with the Agency representative and then told her that she
did not have a case. Complainant claims that her representative told her that he would return
the money she paid if she would sign a MOU that would settle the case once a settlement
agreement was submitted. Complainant maintains that she felt pressured and coerced into
signing the MOU, and that her representative appeared to be influenced by the Agency
representative not to pursue the complaint. Complainant states that she was not afforded time
to decide whether she wanted to sign the MOU. Further, Complainant argues that the MOU
has no value because she was qualified for a Safety and Occupational Health Specialist position
at the GS-9 level, the vacancy is announced on an open continuous list for application at any
time and she has an Associate’s Degree, a Bachelor’s Degree and experience in the safety area.
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Complainant points out that the wording of the settlement agreement has not been negotiated,
finalized, or signed. Complainant requests that this matter be remanded for a hearing before
an EEOC AJ.

In response, the Agency asserts that Complainant’s coercion argument is based on discussions
she had with the attorney she designated as her representative. The Agency maintains that any
dissatisfaction Complainant has with her attorney’s representation is a matter to be addressed
between her and her attorney and does not equate to coercion by the Agency. The Agency
maintains that the discussion between its representative and Complainant’s representative
reflected standard settlement negotiations. According to the Agency, its representative
informed Complainant’s representative that Complainant had not applied for the position at
issue. The Agency asserts that Complainant participated in the settlement discussion on May
11, 2012, and asked several questions related to her complaint prior to signing the MOU.

According to the Agency, the parties had a meeting of the minds at the time the MOU was
executed. The Agency argues that Complainant failed to present evidence that she did not
enter into the MOU knowingly and voluntarily. The Agency states that its representative
neither encouraged nor discouraged Complainant from signing the MOU. The Agency
maintains that Complainant had an opportunity to review the MOU before signing it. With
regard to Complainant’s contention that the MOU has no value, the Agency asserts that
Complainant received consideration in exchange for agreeing not to pursue her complaint. The
Agency states that it agreed to provide Complainant with safety training, personal notification
of the next recruitment for a Safety and Occupational Health Specialist, and resume training.

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 with regard to 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).
In this matter, the record reflects that the parties entered into a MOU as a prelude to entering
into a formal settlement agreement of the instant complaint. Complainant contends that she
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was coerced to enter into the MOU. The Older Workers’ Benefit Protection Act (OWBPA)1

provides the minimum requirements for a waiver of age discrimination claims under the
ADEA. Under the OWBPA, a waiver is not considered knowing and voluntary unless, at a
minimum: (1) it is clearly written from the viewpoint of the Complainant; (2) it specifically
refers to rights or claims under the ADEA; (3) the Complainant does not waive rights or
claims arising in exchange for the waiver; (4) valuable consideration is given in exchange for
the waiver; (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. 29 U.S.C. § 626 (f)(2).
Complainant was represented by an attorney who engaged in a settlement discussion with the
Agency representative. Complainant was subsequently included in the discussion and she
signed the MOU during that session. Upon review of the MOU, we observe that the terms
make no reference to rights or claims under the ADEA. Further, Complainant was not
provided a reasonable period of time in which to consider the MOU. Therefore, we find that
under the OWBPA, Complainant did not knowingly or voluntarily waive her ADEA claim.
Thus, Complainant’s age based claim shall be reinstated but not her claims arising under Title
VII. See Mary Ann Sheehy v. National Security Agency

, EEOC Request No. 0520100403
(February 27, 2012).
With regard to the claims of race, color and sex discrimination under Title VII, we find that
Complainant has not established that she was coerced into signing the MOU. Complainant was
represented by an attorney that she had designated as her representative and she asked several
questions prior to signing the MOU. Complainant received consideration as specified above
for her agreement not to pursue her rights under Title VII. The MOU provided that it would
be enforceable by application to the AJ. Thus, there are sufficient grounds to maintain the
validity of the MOU as to the claims arising under Title VII.

CONCLUSION
The dismissal of this complaint’s claim of age discrimination is REVERSED. The dismissal of
the claims of race, color and sex discrimination is AFFIRMED. The claim of age
discrimination is REMANDED for further processing pursuant to the Order below.

ORDER
Within fifteen (15) days of receipt of this decision, the Agency shall notify the Hearings Unit
of the Los Angeles District Office to request the assignment of an Administrative Judge to
preside over Complainant’s age based claim.

1 The OWBPA amended the Age Discrimination in Employment Act of 1967 (ADEA), 29
U.S.C. § 621 et seq. in 1990, and applies to federal employees pursuant to § 626 (f)(2).
0120123021

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IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
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 77960, Washington, DC
20013. 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

(M0610)
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), at 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 77960, Washington, DC 20013. 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.
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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 Date
April 4, 2014
Office of Federal Operations