0120083199
02-19-2009
Jacqueline E. Thompson, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Jacqueline E. Thompson,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083199
Agency No. ARANAD07NOV04378
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 2, 2008, finding that it was in
compliance with the terms of the March 13, 2008 negotiated 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.
The March 13, 2008 negotiated settlement agreement (NSA) provided,
in pertinent part, that the agency agrees to take the following action:
3.a. By 13 April 2008, Complainant will be permanently moved out of
Tracked Systems Division, Directorate of Production, to another Division
in the Directorate of Production.
3.b. On Monday, 17 March 2008, Complainant will report to the Division
Office to be detailed out of [complainant's former supervisor's] cost
center pending the reassignment in paragraph 3(a) above.
3.c. The Agency agrees to pay Complainant the sum of $22,000.00 in
full payment of all of her claims in this matter including her claims
of compensatory damages. Complainant understands that this is a gross
amount and that all lawful deductions will be taken out of said amount.
3.d. The Agency will credit Complainant's sick leave account with 17
hours of sick leave.
3.e. Neither this NSA nor the circumstances surrounding this matter
will be of any consideration in extending Complainant's term appointment.
Any such decision will be made solely on job related factors.
4. Attorney's fees in the amount of $17,000 will be paid by the Agency to
[Complainant's attorney].
By letter to the agency dated May 12, 2008, complainant requested that
her underlying complaint be reinstated because she was coerced into
signing the NSA. Specifically, complainant alleged that on March 17,
2008, her attorney called the agency representative asking to rescind
the NSA because the Investigations and Resolutions Division (IRD)
investigator made misrepresentations during the mediation and refused
to hold a Fact Finding Conference (FFC). Complainant further alleged
that the agency representative (AR) informed her attorney that "the judge
had already dismissed the case, which we have evidence that the case was
not dismissed until March 18, 2008. This was just another one of [AR's]
entrapments to [Complainant] into a settlement where there is evidence
of misrepresentation by the Investigator and the Agency." Complainant
alleged that she was under duress when she signed the agreement.
Complainant alleged that during the relevant time she "had been under a
psychiatric for one year and 6 months and has been diagnosed with deep
depression and currently on three different medications: EFFEXOR R 150 Mg,
CLONAZEPA 0.5 Mg, TEMAZEPAM 15 Mg for troubled sleeping." Furthermore,
complainant returned a check of $22,000.00 to the agency.1
In its June 2, 2008 final decision, the agency determined that the NSA is
valid as complainant executed the NSA voluntarily, with one of her two
attorneys, and with full knowledge of its terms. The agency maintains
that all of the terms set forth in the NSA have been implemented.
With regard to complainant's claim that the IRD investigator made
misrepresentations during the mediation and refused to hold a FFC, the
agency concluded that complainant failed to provide sufficient evidence
to demonstrate misrepresentation and misconduct by the IRD investigator.
According to AR, on March 13, 2008, the IRD investigator was prepared
to begin the FCC and the court reporter was setting up the testimony.
AR further stated that the IRD investigator stated that because it
was getting late in the day, she did not think there would be time to
call of complainant's witnesses but planned to call complainant and two
agency witnesses. AR further stated that she then summoned the agency
witnesses to the conference location and the IRD investigator began the
conference but complainant announced that she did not think it would be
necessary because she believed she had an agreement with the agency.
The agency found that complainant's claim concerning the AR's alleged
misrepresentation of the date on which the EEOC AJ dismissed her
hearing request refer to an event that occurred after she signed the
NSA and is not relevant to her assertion to the NSA was procured through
misrepresentation. The agency stated that according to AR, she informed
complainant's two attorneys that on March 14, 2008, she sent the AJ a
copy of the NSA which disposed of the case.
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).
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 Shimon
v. Department of the Navy, EEOC Request No. 05900744 (July 20, 1990).
The Commission examines coercion claims with much 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 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, 1997).
In the instant case, complainant contends that she was coerced into
signing the agreement. However, complainant has not articulated any
conduct that reflects that she was induced to sign the agreement because
she was threatened with harm or loss. Thus, the Commission determines
that complainant has not met her burden of establishing coercion.
To the extent that complainant claims she was under duress, complainant
provides no evidence she was incapacitated or mentally deficient at
the time she signed the NSA. We note that at the time of the signing
of the NSA, complainant was with one of her two attorneys. We further
note that complainant signed the NSA and affirmed that she had read
and understood the entire agreement and was not unduly influenced or
coerced into signing it. Complainant now apparently regrets signing
the agreement because she feels that its terms are not advantageous to
her interests. A settlement agreement made in good faith and otherwise
valid will not be set aside simply because it appears that one of the
parties made a bad bargain. See Miller v. Department of the Treasury,
EEOC Request No. 05960622 (December 5, 1997). Consequently, we find
that the NSA is a valid and binding agreement and deny complainant's
request that the agreement be set aside.
Accordingly, the agency's final decision finding that it had not breached
the NSA is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 19, 2009
__________________
Date
1 The record reflects that by letter dated May 29, 2008, the agency
returned the subject check to complainant.
??
??
??
??
2
0120083199
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083199
6
0120083199