Dorothy M. Williams, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 22, 1999
01993035_r (E.E.O.C. Sep. 22, 1999)

01993035_r

09-22-1999

Dorothy M. Williams, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Dorothy M. Williams, )

Appellant, )

)

v. ) Appeal No. 01993035

) Agency No. 970139

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

On May 2, 1999, appellant filed a timely appeal with this Commission from

a final decision (FAD) by the agency dated January 24, 1999, finding that

it was in compliance with the terms of the December 3, 1996 settlement

agreement into which the parties entered. See 29 C.F.R. ��1614.402,

.504(b); EEOC Order No. 960, as amended.

By a letters to the agency dated January 27, 1997, and May 27, 1997,

appellant alleged that she was coerced into signing the settlement

agreement and that it should therefore be disregarded and her prior

complaint reinstated at the point processing ceased. Specifically,

appellant made the following allegations:

(1) Appellant was told to backdate the settlement agreement.

(2) The settlement agreement did not reflect appellant's input regarding

the work schedule and associated expenses.

The agency informed her that if she did not sign the settlement

agreement, she would be terminated effective April 27, 1997.

In its January 24, 1999 FAD, the agency concluded that it had complied

with the terms of the settlement agreement. The agency acknowledged

that appellant was asked to backdate her signature on the agreement,

but determined that this caused no harm. Additionally, the agency

concluded that the presence of a mediator and appellant's consultation

with an attorney prior to signing the agreement indicated that the

provisions therein reflected the input of both parties. Finally, the

agency concluded that �to their knowledge, no one communicated to the

complainant that her failure to sign or comply with the agreement could

or would result in her being terminated.�

On appeal, appellant submitted a letter from the attorney whose advice

she sought when entering the agreement. The attorney's letter states

in pertinent part:

[Appellant] first came in to see me back in December, 1996. She was

being pressured to sign the settlement agreement. She was told she

should backdate the settlement agreement, and that it had to be done

that way. She was being pressured into signing something she did not

want to sign. I understand she signed it in fear of losing her job.

She would not have signed it because she did not agree with its terms.

However, she was told that she would lose her job of 29 years if she

did not sign the agreement on that date.

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).

Because the Commission favors the voluntary resolution of discrimination

complaints, settlement agreements are not lightly set aside. See e.g.,

Rogers v. General Electric Co., 781 F.2d 452 (5th Cir. 1986). However, 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).

This Commission examines coercion claims with much scrutiny. The party

rasing 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. An appellant's bare assertions will

not justify a finding of coercion. See Raphel v. Department of the Army,

EEOC Request No. 05921042 (May 6, 1993).

In the instant case, the Commission finds that appellant failed to

present sufficient evidence showing that the settlement agreement

should be overturned. The agency acknowledges that the signatures on

the agreement were backdated to December 3, 1996. Although the parties

disagree as to why this was done, we find that appellant failed to show

how she was harmed by this practice. Accordingly, we are unwilling to

set aside the agreement merely because it was backdated.

We also find that appellant's other allegations of improprieties are

unsupported by the record. We acknowledge that the statement provided

by appellant's attorney corroborates appellant's claim that she was

coerced into entering into the agreement; however it merely mimics

what appellant told him, rather than providing independent evidence

of coercion. Moreover, the fact that appellant obtained advice from

an attorney prior to signing the agreement lends more credence to the

agency's position that it was entered into without undue influence. If,

as her attorney suggests on appeal, appellant was reluctant to sign the

agreement as it then existed, she should have been advised not to do so.

We find that appellant failed to show that she was coerced into entering

the subject agreement.

Accordingly, the agency's final decision is AFFIRMED for the reasons

set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

September 22, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations