01A23218_r
10-17-2002
Hassan Etemadi, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Hassan Etemadi v. Department of Veterans Affairs
01A23218
.October 17, 2002
Hassan Etemadi,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23218
DECISION
Complainant filed a timely appeal with this Commission from a March 7,
2002 agency final decision which invalidated the June 21, 2001 settlement
agreement executed by the parties. The Commission accepts the appeal.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
According to the record, by letter to the agency dated October 17,
2001, complainant alleged that the agency failed to fulfill certain
terms of the above referenced settlement agreement, and requested that
the agency comply with these provisions. In response, rather than
addressing the gravamen of complainant's breach claims, the agency
issued a final decision declaring the settlement agreement void because
it failed to satisfy the waiver requirements under the Older Workers'
Benefit Protection Act (OWBPA). The agency's final decision advised
complainant to contact its Office of Resolution Management to initiate
the reinstatement of his underlying EEO complaint, and also provided
complainant with appeal rights to the Commission. The instant appeal
followed.
On appeal, complainant argues that although the settlement agreement
did not contain the OWBPA waiver language, he suffered no disadvantage
in not being afforded this protection. Specifically, complainant
contends that he is not particularly old. Complainant also contends
that as a physician, he had a good understanding of the settlement
agreement provisions, as well as a clear appreciation of the rights
he was waiving under the Age Discrimination in Employment Act (ADEA).
Complainant further avers that he will suffer a significant hardship
if the settlement agreement is declared void by the agency, and argues
that this would be an absurd result given that the purpose of the OWBPA
is to afford him protection in dealing with the agency.
In response, the agency contends that the OWBPA mandates that the
settlement agreement be declared void due to the omission of the required
OWBPA waiver language, arguing that the Commission itself has held that
such settlement agreements are invalid. The agency requests that the
Commission affirm its final decision.
The OWBPA amended the ADEA, effective October 16, 1990. The OWBPA
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 in exchange for
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).
In the instant case, there is no dispute that the settlement agreement
at issue did not satisfy the OWBPA waiver requirements. However, it is
also clear that complainant, whom the OWBPA was enacted to protect, has no
desire to invoke its provisions to invalidate the settlement agreement.
Nonetheless, the agency here advances the legal proposition that failure
to satisfy the OWBPA waiver requirements renders the settlement agreement
void ab initio, rather than voidable at the option of complainant.
We disagree.
In the instant case, we find that for the agency to invoke unilaterally
this statute to avoid its contractual obligations to an older worker,
to the detriment of the older worker, is clearly inconsistent with the
benevolent intentions of Congress and the purpose of the statute. The
agency argues that the Commission had held in numerous cases that
settlement agreements that violate the OWBPA are �invalid;� however,
we note that Commission decisions on this issue exclusively address
allegations raised by the complainants that they did not understand the
settlement agreement or that they signed the agreement under duress,
or for other reasons these complainants felt that they had been taken
advantage of by the agency. In these cases, even if the complainant has
not specifically invoked the OWBPA, the Commission has found that where
it is applicable, i.e., where the underlying complaint claims age-based
discrimination and the settlement agreement was executed without OWBPA
safeguards, the settlement agreement may be declared invalid under
the OWBPA.
For the reasons set forth above, we find that the agency improperly
declared the settlement agreement at issue void ab initio due to its
failure to include the mandated OWBPA safeguards. We further find
that this settlement agreement remains voidable due to this deficiency,
and may only be challenged as void under the OWBPA by the complainant,
whom the OWBPA was enacted to protect.
Accordingly, we VACATE the agency's decision, and we REMAND the case
to the agency to address complainant's breach claims, as more fully set
forth in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days from the date that this decision becomes
final, the agency shall respond to complainant in writing, addressing
each of the allegations raised by complainant in his breach claim.
If the agency determines that it failed to comply with a provision of
the settlement agreement, the agency shall immediately take action to
specifically enforce the breached provision. The agency's response must
also include appropriate appeal rights to this Commission.
The agency must provide copies of all pertinent documentation
demonstrating its compliance with this ORDER to the Commission's
Compliance Officer, as set forth below.
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
October 17, 2002
__________________
Date