01A34059_r
12-10-2003
Germany Fomby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Germany Fomby v. United States Postal Service
01A34059
December 10, 2003
.
Germany Fomby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34059
Agency No. 4F-940-0121-02
Hearing No. 370-A3-2205X
DECISION
Complainant filed an appeal with this Commission regarding the May 1,
2003 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
SECOND: (d) (3) The Agency agrees to provide the Complainant a lump-sum
payment of $250.00 within sixty (60) days from the signing of this
agreement.
SIXTH: Complainant represents that s/he has reviewed all aspects of
this Agreement, that s/he has carefully read and fully understands
all the provisions of this Agreement, that s/he understands that in
agreeing to this document s/he is releasing the Agency from any and all
claims s/he may have against the Agency, that s/he voluntarily agrees
to all the terms set forth in this Agreement, that s/he knowingly and
willingly intends to be legally bound by the same, that s/he was given
the opportunity to consider the terms of the Agreement.
By letter to the agency dated May 21, 2003, complainant contacted the
agency �to appeal the settlement agreement� for four reasons. First,
complainant claimed that he did not have sufficient time to gather
doctor's information. Second, complainant stated that the mediation
process was too long and noted that there was no lunch break which he
claims caused a psychological impact for him. Third, he claimed that the
words should be re-written to honor all doctors' opinion or diagnosis.
Fourth, he stated that there was no discussion regarding the percentage
of disability and a scheduled award.
In its June 6, 2003 letter, the agency noted that under paragraph
six of the agreement, complainant voluntarily agreed to all the terms
in the agreement. Further, the agency argued that he knowingly and
willingly intended to be legally bound by the agreement and was given
the opportunity to consider the terms of the agreement. The agency
noted that if there was a dispute regarding the implementation of
the agreement, then complainant should specify the issue of dispute.
The agency stated that the four items addressed in complainant's May 21,
2003 correspondence do not raise any issues of dispute.
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). 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. Department 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 v. United States Postal
Service, 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).
The Commission notes that when complainant pursued the EEO complaint
process that led to the settlement agreement, age was one of the bases of
alleged discrimination that he identified. The Older Workers' Benefit
Protection Act (OWBPA) amended the Age Discrimination in Employment Act
of 1967 (ADEA), effective October 16, 1990, and provides the minimum
requirements for waiver of ADEA claims. To meet the standards of the
OWBPA, a waiver is not considered knowing and voluntary unless, at a
minimum: it is clearly written from the viewpoint of the complainant; it
specifically refers to rights or claims under the ADEA; the complainant
does not waive rights or claims arising following execution of the
waiver; valuable consideration is given in exchange for the waiver; the
complainant is advised, in writing, to consult with an attorney prior
to executing the agreement and the complainant is given a "reasonable"
period of time in which to consider the agreement. 29 U.S.C. 626(f)(2).
See Swain v. Department of the Army, EEOC Request No. 05921079 (June 3,
1993) (settlement agreement upheld which was found to meet the waiver
provisions of the OWBPA); Juhola v. Department of the Army, EEOC Appeal
No. 01934032 (June 30, 1994).
After a review of the record, including the settlement agreement at
issue, the Commission finds that the agency failed to comply with the
requirements of the OWBPA. The Commission notes, for example, that the
settlement agreement does not state specifically that complainant is
waiving his rights to claims under the ADEA. Further, the record does
not show that the agency advised complainant in writing to consult with an
attorney prior to executing the settlement agreement or that complainant
was given a reasonable period of time within which to consider the
settlement agreement. The Commission finds that complainant's waiver
of his age claim is not considered knowing or voluntary. Therefore,
the Commission finds the settlement agreement void and we shall order
the agency to reinstate the underlying complaint (4F-940-0121-02) at
the point processing ceased.
Accordingly, the agency's finding the settlement agreement valid is
hereby VACATED and the matter is REMANDED to the agency for further
processing in accordance with the Order below.
ORDER
Within fifteen calendar days of the date this decision becomes final,
the agency shall request that the EEOC's San Francisco District Office
schedule a hearing regarding agency number 4F-940-0121-02. The agency
is directed to also submit a copy of the complaint files to the Hearings
Unit of the San Francisco District Office within fifteen calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the request and complaint files have been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109 et seq., and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 10, 2003
__________________
Date