01A11256
05-24-2001
John A. Rodriguez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John A. Rodriguez v. United States Postal Service
01A11256
May 24, 2001
.
John A. Rodriguez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11256
Agency Nos. 1-H-336-0115-00 & 1-H-336-0116-00
DECISION
The Commission finds that the agency's October 31, 2000 final decision
dismissing complainant's breach of settlement agreement claim was
not proper pursuant to the provisions set forth at EEOC Regulation 29
C.F.R. � 1614.504(a).
By last chance agreement reached on August 8, 1999, complainant agreed
to settle �all outstanding grievances, administrative EEO complaints or
MSPB appeals.�
On May 15, 2000, complainant sought EEO counseling claiming that he had
been discriminated against on the bases of race, disability, and age
when on January 19, 2000, he was issued a notice of proposed removal.
This informal complaint became Agency Case No. 1-H-336-0115-00. On this
same date Complainant also sought EEO counseling claiming that he had
been discriminated against on the bases of race, age, and disability
when on January 15, 2000, a discriminatory remark was made concerning
the reasons behind his removal. This informal complaint became Agency
Case No. 1-H-336-0116-00.
The record shows that on June 9, 2000, complainant and the agency reached
a settlement agreement that provided that complainant would be reinstated
effective the first day of pay period 14/00. The agreement also provided
that the last chance agreement reached by the parties on August 8,
1999, would be placed in force for a new period of two years starting
on June 9, 2000. Finally, the agreement provided that complainant would
withdraw his grievance. The agreement did not state that complainant's
EEO complaint(s) would be withdrawn as a result of the agreement reached.
On July 11, 2000, complainant and the agency reached a settlement
agreement in which complainant agreed to withdraw all pending EEO
complaints, including the two complaints that are the subject of the
instant appeal. The agreement provided, inter alia, that the last chance
agreement dated June 9, 2000, would be removed from all files and would
not be used in any subsequent disciplinary action. The agreement also
provided that complainant would be paid the amount of five thousand
dollars ($5,000.00).
On October 13, 2000, the agency issued a notice of proposed removal
against complainant and charged complainant with violating the June 9,
2000 last chance agreement. By letter dated October 20, 2000, complainant
notified the agency that the provisions of the settlement agreement had
been breached. By notice dated November 24, 2000, the agency removed
complainant from his position effective November 30, 2000.
By final decision dated October 31, 2000, the agency found that the terms
of the settlement agreement had not been breached. The agency found that
because the first settlement agreement �laid all issues to rest ... the
second settlement was null and void�. The agency stated that when the
EEO complaint was scheduled for mediation,<1> the EEO office was unaware
that a last chance agreement had been reached on August 8, 1999.
On appeal, complainant contends, inter alia, that the $5,000.00 payment
to be provided under the settlement agreement was subsequently denied
by the agency.
EEOC Regulations provide that any settlement agreement knowingly and
voluntarily agreed to by the parties shall be binding on both parties.
If the complainant believes that the agency has failed to comply with the
terms of a settlement agreement, then the complainant shall notify the
EEO Director of the alleged noncompliance "within 30 days of when the
complainant knew or should have known of the alleged noncompliance."
29 C.F.R. �1614.504(a). The complainant may request that the terms
of the settlement agreement be specifically implemented or request
that the complaint be reinstated for further processing from the point
processing ceased. Id.
Settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). In reviewing settlement agreements to determine
if there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. USPS, EEOC Request No. 05931097 (Apr. 29, 1994) (citing Hyon
v. USPS, EEOC Request No. 05910787 (Dec. 2, 1991)). This rule states that
if the writing appears to be plain and unambiguous on its face, then its
meaning must be determined from the four corners of the instrument without
any resort to extrinsic evidence of any nature. Id. (citing Montgomery
Elevator v. Building Engineering Service, 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).
A review of the record shows that, contrary to the agency's findings
in its final decision, the last chance agreement did not lay �all
issues to rest�. The last chance agreement, reached on August 8, 1999,
provided that by reaching said agreement, all outstanding EEO complaints
were resolved. However, it could not resolve the instant complaints
because they had not been filed on the date of the agreement. The record
shows that the instant informal complaints were filed on May 15, 2000, 8
months after the last chance agreement was signed by the parties on August
8, 1999. See Bell v. Department of Defense, EEOC Request No. 05940741
(January 6, 1995)(prospective waivers of Title VII rights are invalid
and are presumed to violate public policy).
We also note that the settlement agreement reached on June 9, 2000,
did not specifically provide that complainant's EEO complaints would
be withdrawn. Instead, it only provided that complainant would withdraw
his grievance. Finally, it was not until the parties reached a settlement
agreement on July 11, 2000, that they specifically agreed to resolve
the instant EEO complaints.
We hereby address the July 11, 2000 settlement agreement because, as we
have found, it is the only agreement that specifically addressed the
resolution of the instant EEO complaints. We find that although age
was one of the bases raised in the EEO complaints, the July 11, 2000
settlement agreement did not provide that complainant was waiving his
rights or claims under the ADEA. Moreover, the agency did not advise
complainant in writing to consult with an attorney prior to executing
the settlement agreement. We also find that the record does not show
that complainant was given a reasonable period of time within which to
consider the settlement agreement. Therefore, we find that the waiver
requirements of the OWBPA have not been met by the settlement agreement
and it is therefore invalid.
The Commission also determines that complainant's retention of any
consideration that he may have received under the settlement agreement
is no impediment to the reinstatement of his ADEA claims against
the agency.<2> See Oubre v. Entergy Operations Inc., 522 U.S. 422,
118. S. Ct 838 (1998). Moreover, complainant is advised that if he
prevails on his EEO complaints, any monetary award may be subject to
offset by consideration that he has already received from the agency.
See Oubre, id. Therefore, the Commission determines that the agency
improperly declined to reinstate complainant's complaints.
Accordingly, the agency's finding of no breach of the settlement agreement
is REVERSED. The matter is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to reinstate complainant's EEO complaints at
the point which processing ceased. The agency shall acknowledge to
complainant that it has resumed processing complainant's complaints within
thirty (30) calendar days of the date that this decision becomes final.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement of his complaints must be sent to the Compliance
Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
May 24, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record shows that by letter dated June 27, 2000, several EEO
complaints filed by complainant were scheduled for mediation to be held
on July 11, 2000.
2 We note, however, that complainant claims that the agency denied the
$5,000.00 payment to be provided pursuant to the terms of the settlement
agreement. The agency has failed to address this issue in its final
decision and on appeal.