0120130496
05-09-2013
Desmond A. Pridgen, Complainant, v. Allison M. Macfarlane, Chairman, Nuclear Regulatory Commission, Agency.
Desmond A. Pridgen,
Complainant,
v.
Allison M. Macfarlane,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120130496
Agency No. NRC1112
DECISION
Complainant filed an appeal with this Commission from a final decision (FAD) by the Agency, finding that it was in compliance 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 this complaint, Complainant worked as a Civil Rights Specialist at the Agency's Office of Small Business and Civil Rights facility in Rockville, Maryland. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 2, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement (Agreement) provided, in pertinent part, that:
(3) The Agency agrees to place [Complainant] in a leave without pay (LWOP) status for a period not to exceed six (6) months, beginning May 20, 2012 and ending November 17, 2012. [Complainant's] entitlement to benefits (such as retirement, health insurance, dental and vision insurance, life insurance, Thrift Savings Plan, Flexible Spending Account and long term care insurance) during LWOP will be in accordance with Federal laws and regulations and Agency guidance.
(Parentheses in original)
By email to Agency Counsel on November 14, 2012, Complainant alleged that the Agency was in breach of the Agreement but did not specify the nature of the breach. Complainant filed his appeal to the Commission the next day, before the Agency had issued a decision on his breach claim. We will consider Complainant's November 15, 2012 appeal to constitute the notice of breach. In that notice, Complainant specifically alleged that he was coerced into signing the Agreement by being threatened with removal. In addition, Complainant alleged that the Agency breached the Agreement by appealing the decision by the State of Maryland Department of Labor, Licensing and Regulations to award Complainant unemployment pay. Complainant further alleged that the Agency breached the Agreement by "erroneously disclosing the fact the Complainant's security clearance had been revoked." Finally, Complainant alleged that the Agency breached the Agreement by denying him severance pay and discontinuance retirement.
As we consider Complainant's November 2012 appeal to constitute his notice of breach, we also consider the Agency's December 17, 2012 appeal brief to constitute the Agency's FAD. In its FAD, the Agency concluded it had not breached the Agreement. Specifically, the Agency found that in his notice of breach, Complainant failed to specify what provisions of the Agreement were allegedly breached, but that "it appears that the primary clause [Complainant] is alleging to have been breached is paragraph 3 of the Agreement regarding benefits available during" leave without pay (LWOP). The Agency maintains that "in each case, the Agency has followed applicable laws, regulations and guidance in processing [Complainant's] requests or providing information to [Complainant] that he is ineligible for such benefits." The Agency further noted that since "the Office of Personnel Management (OPM), the U.S. Department of Labor and the State of Maryland control much of the process and ultimate determinations of eligibility for various benefits, allegations of breach on the part of the [Agency] are inappropriate."
With regard to unemployment benefits, the Agency contends that it initially filed an opposition to Complainant's benefits with the State of Maryland
strictly on the basis that [Complainant] was still employed by the Agency in a LWOP statues when he made his application . . .. [T]he only issue the Agency raised with regard to . . . unemployment benefits was the timing of such benefit. When informed by the . . . Administrative Judge hearing the case that timing was not an issue, the Agency withdrew its opposition to [Complainant] receiving such benefits.
FAD (Agency Appeal Brief), p. 9.
With regard to Discontinued Service Retirement (DSR), the Agency found that entitlement to such benefits depends on whether an employee's separation was voluntary or not, and furthermore, that "[o]ne of the central requirements for DSR eligibility (related to removal for unacceptable performance) is that an employee be provided specific written notice that he will be terminated for unacceptable performance on a date certain." Id., p. 10 (parentheses in original). The Agency found that, while Complainant received a draft removal notice on April 13, 2012, he "was given an opportunity to negotiate a settlement of all pending matters, . . . [and] remained in full-pay status throughout [such] negotiations . . . until May 20, 2012, . . .. He remained in a leave without pay status until his resignation on November 17, 2012." Id., p. 11. The Agency next disagreed with Complainant's contention that he was "verbally removed as of April 13, 2012" noting that Complainant "was never told the removal was effective, let alone as of that day." Id. The Agency concluded that "no removal notice was issued [and Complainant] voluntarily resigned" and that he therefore "does not meet the basic eligibility requirements for DSR." Id.
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. 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 the instant case, we note initially that the OWBPA provides the minimum requirements for a valid waiver of ADEA claims. Woychik-Brown v. department of Agriculture, EEOC Request No. 05960768 (July 16, 1999). To validly waive ADEA claims, the waiver must, inter alia, be clearly written from the viewpoint of a complainant, must specifically refer to rights or claims under the ADEA, must advise a complainant, in writing, to consult with an attorney before executing the agreement, and must give a complainant a "reasonable" period of time in which to consider the agreement. Id. (citing Runge v. Department of the Army (EEOC Appeal No. 01941234 (June 30, 1994)); see 29 C.F.R. � 1625.22(b). We find that the Agency complied with these provisions, and provided Complainant with all notices that he is entitled to receive under the OWBPA.
With regard to Complainant's claims of coercion, we note that the Commission has held that if coercion, misrepresentation, misinterpretation, or mistake, occur during the formation of the contract, assent to the agreement is impossible, and the Commission will find the contract void. See Shuman v. Department of the Navy, EEOC Request No. 05900744 (July 20, 1990). The Commission examines coercion claims with close 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. A Complainant's bare assertions will not justify a finding of coercion. Lenihan v. Department of the Navy, EEOC Request No. 05960605 (December 5, 1995. We note that Complainant has presented no evidence to support his claim of coercion, and he signed the Agreement which states that he was provided 21 days from the date he received the first draft of the Agreement to review its terms and seven calendar days after signing the Agreement to revoke the Agreement if he so wished. In addition, he was provided the opportunity to consult with an attorney of his own choosing before signing the Agreement, and the Agreement provided adequate consideration in the form of a lump sum payment of $122,221.00. We therefore find that Complainant has not met his burden of establishing coercion.
With regard to unemployment benefits, Complainant has not specified how the Agency allegedly breached the Agreement. Even assuming arguendo that the Agency sought to prevent him from obtaining such benefits, Complainant has not shown how this would constitute a breach since the Agreement does not prohibit the Agency from doing so. In any event, the Agency maintains that it only objected to the timing of entitlement to such benefits, and when advised by the Administrative Judge that "timing was not an issue, the Agency withdrew its opposition . . . [and Complainant] is currently receiving such benefits." FAD p. 9.
With regard to DSR, we note that, to the extent Complainant is arguing that the denial of DSR benefits constitutes a breach of the Agreement because he was involuntarily separated and hence is entitled to DSR, Complainant cites 5 C.F.R. � 550.706 which states
(a) An employee who resigns because he or she expects to be involuntarily separated is considered to have been involuntarily separated if the employee resigns after receiving-
(1) Specific written notice that he or she will be involuntarily separated by a particular action effective on a particular date.
We note, however, that Complainant has not shown that he meets the requirements under �550.706. The Agency found in its FAD that Complainant received only a draft notice of removal that did not include a particular effective date for the removal. Complainant has included in the record a copy of a draft removal letter dated April 13, 2012. Of particular note is the sentence addressing his removal which includes a blank space for the date of removal. Because � 550.706(a)(1) states that the removal notice must include an effective date for the removal we find that the April 2012 draft removal notice does not meet the standard for constituting an involuntary separation for DSR purposes. Complainant on appeal argues that he was verbally provided the removal date, but we note that � 550.706(a)(1) requires that such notice be in writing. We therefore find that Complainant has not shown that the Agency's action in denying his entitlement to DSR constitutes a breach of the Agreement.
With regard to Complainant's allegation that the Agency breached the Agreement by "erroneously disclosing the fact the Complainant's security clearance had been revoked," we note that the Agreement contains no clause prohibiting such a disclosure by the Agency. Furthermore, even assuming, arguendo, that the Agreement did prohibit the Agency from disclosing, erroneously or otherwise, information about Complainant's security clearance, Complainant has not presented corroborative evidence to substantiate his claim that the Agency disclosed such information.
Finally, we note that with regard to Complainant's claims on appeal that he has continued to experience reprisal, such claims do not constitute claims of breach. If Complainant feels he has experienced acts of reprisal flowing the signing of the Agreement, he may contact and EEO Counselor to initiate the complaint process.
CONCLUSION
For the reasons provided above we find that Complainant has not met his burden of establishing that the Agency breached the Agreement and we AFFIRM the FAD.
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.
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 (S0610)
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 (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
Office of Federal Operations
May 9, 2013
__________________
Date
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0120130496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130496