0120112007
04-11-2012
Joyce A. McMahon, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Joyce A. McMahon,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120112007
Hearing No. 520-2009-00046X
Agency No. HS-08-CBP-004380
DECISION
Complainant filed an appeal with this Commission from a final decision
by the Agency dated January 19, 2011, finding that it was in compliance
with the terms of the settlement agreement into which the parties entered.
BACKGROUND
On March 28, 2008, Complainant filed an equal employment opportunity
complaint with the Agency. Specifically, Complainant alleged
discrimination on the bases of age (54), race (White), color (white),
sex (female), national origin (American), religion (Unitarian) and in
reprisal for seeking EEO counseling when on January 14, 2008, she became
aware that her application for the position of Auditor, GS-0511-11,
New York Field Office under the Federal Career Intern Program (FCIP) was
not processed correctly resulting in a determination that she had failed
her background investigation and was ineligible for hire with the Agency.
On June 16, 2009, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement provided,
in pertinent part, that:
II. In consideration of the Complainant's promises and
representations in paragraph
I, supra, and paragraph III, infra, the Agency hereby agrees to:
A. Present Complainant with a conditional offer of employment for the
position of Regulatory Auditor at the GS-09 level. The offer will be
conditional on the completion of all pre-employment requirements,
including Complainant's successful completion of a new background
investigation. The Agency will make efforts to expedite the background
investigation process; however, a full and thorough background must be
completed prior to Complainant's report date with the Agency.
B. The Agency will offer Complainant the Regulatory Auditor position as
part of the Agency's Federal Career Internship Program (FCIP) whereby
Complainant will be subject to a two-year probationary period beginning
on Complainant's report date.
III. The Agency and the Complainant jointly agree as follows:
E. The parties understand and agree that the terms and conditions of this
Agreement shall not be communicated to any third party, or publicized
in any manner, except as necessary for the enforcement of its terms or
as required by law, and will be kept strictly confidential.
By letter to the Agency dated December 15, 2010, and revised on December
16, 2010, Complainant alleged that the Agency was in breach of the
settlement agreement. Specifically, Complainant alleged that the Agency
failed to comply with Paragraph II.B, when it failed to promote her.
Complainant alleged that one of the implied benefits of this provision was
the opportunity for her to have a fair chance to successfully pass the
two year probationary period and to be subsequently offered a permanent
position. She claims that the Agency has made it clear she will not be
offered a permanent position.
Complainant also alleged that the Agency breached provision III.E. when
it failed to take action to ensure the confidentiality of the terms and
conditions of the Agreement, and allowed gossip to spread throughout
Complainant's work environment for over one year until it was brought,
to her attention on November 19, 2010, by one of her non-supervisory
co-workers that there was a rumor going around that she had engaged in
prior EEO activity and that this was the probable reason she did not
get promoted.
Moreover, Complainant alleged the agreement was void due to lack of good
faith. Specifically, Complainant alleged that the Assistant Commissioner,
who signed the agreement on behalf of the Agency, must have had knowledge
that the Agency’s Office of International Trade (OT), the Office of
Internal Affairs (IA) and the Office of Human Resources Management (OHRM)
had worked cooperatively to discriminate and then retaliate against her.
Complainant also alleged the agreement was void due to frustration
of purpose. Complainant alleged that the purpose of the settlement
agreement was to allow her to enjoy the benefits of the position and to
put an end to the discrimination and retaliation. Complainant claimed
that she has not enjoyed either of these benefits since she did not
get the automatic promotion nor is she enjoying a workplace free of
discrimination and/or retaliation.
Complainant claimed the agreement was void due to Misrepresentation/Fraud
in inducement since she claimed the Assistant Commissioner knew or should
have known that OT, IA and OHRM worked cooperatively to frustrate the
hiring process for hiring her. She stated that the Assistant Commissioner
knew that he did not have the power to stop further discrimination and/or
retaliation and withheld this information from her. She stated that if
she had known this, she would not have signed the Agreement and claimed
that this was fraud in the inducement.
Complainant also claimed the settlement agreement violated public
policy since an agreement to settle an EEO Complaint must, implicitly,
not contain an agenda to continue the discrimination and/or retaliation.
Complainant also challenged whether the Assistant Commissioner had the
appropriate authority to sign the agreement. Complainant stated that
it is unknown if the Assistant Commissioner is an authorized agent of
the Agency against whom this complaint was brought.
Complainant also alleged that she was forced to sign the agreement
under duress. She stated that she was unemployed and seeking work since
January 13, 2007. Complainant stated that she graduated with student
loans in August, 2006 and by May, 2009 when she signed the Agreement,
her three years of Unemployment Deferments on her Federal student loans
was running out. She stated that if she allowed her deferments to expire,
her Federal loans would have become delinquent and then she never would
have been able to pass a background investigation.
Finally, Complainant argued the agreement is voidable by her due to
incompleteness and uncertainty. She stated the Agreement does not specify
the terms of the Federal Career Intern Program to which she had applied.
She noted the agreement does not specify that it is a two- year training
program during which time she is there to learn and not to be judged
as if she was at a higher grade level. She stated it also does not
specify that she is to receive automatic promotions at the end of the
first year and again at the end of the second year (assuming that she is
retained at the end of the second year). She stated that the agreement
does not specify that the terms of the job that she settled for are the
same terms of the position for which she originally applied.
In its January 19, 2011 final decision, the Agency concluded that it did
not breach the terms of the agreement. With regard to Complainant’s
claim that the Agency failed to promote her, the Agency noted that
the agreement does not provide that Complainant would be promoted
during her internship. With regard to her claim that management
failed to maintain confidentiality of the agreement, the Agency denied
disclosing any information about the agreement. The Agency noted that
Complainant did not produce any evidence supporting her allegation that
it violated the confidentiality provision of the agreement. With regard
to Complainant's claims that the agreement was invalid because the Agency
entered the agreement in bad faith; worked to frustrate the purpose of
the agreement; fraudulently induced Complainant to enter the agreement
through misrepresentation; effected an agreement which violated public
policy; possibly used an individual who was not authorized to enter the
agreement on behalf of the Agency; and caused Complainant to enter into
the Agreement under duress, the Agency determined Complainant failed to
provide sufficient evidence to support these assertions.
On appeal, Complainant states the Agency failed to comply with Executive
Order 13162 which she stated provided for equal employment opportunity.
Complainant states that the Agency denied her equal employment opportunity
when it failed to promote her based on discrimination and retaliation.
She also alleged the Agency’s failure to promote her violated the
Agency’s internal Directive 51430-003 requiring the rating official
to continuously monitor and timely inform an employee of deficiencies
in performance.
Complainant also alleges that the Agency breached provision III.E. of
the agreement. Specifically, Complainant stated the Agency communicated
the terms and/or the conditions of the Agreement to third parties as
evidenced by her coworker, Person X, informing her on November 19,
2010 that a rumor was going around that she had previously engaged
in EEO activity and that her original Offer of Employment had been
withdrawn and that she was subsequently hired as a result of her EEO
activity and that "everyone" knew about this. She alleges that other
coworkers subsequently independently told her that they had heard about
her previous EEO activity.
In response to Complainant's appeal, the Agency states it executed all the
terms of the agreement. The Agency notes that Complainant's inability
to obtain a promotion and subsequent termination occurred following
execution of all terms of the agreement. The Agency states that if
Complainant wishes to allege retaliation and/or discrimination with
regard to her not obtaining a promotion or termination, this should be
filed separately as it does not relate to breach of the present agreement.
With regard to her claim that she did not obtain a promotion, the Agency
also states this claim is untimely because Complainant was informed that
she would not obtain a promotion on October 18, 2010, but she did not
file a breach claim until more than 30 days later on December 15, 2010.
The Agency states Complainant's allegations regarding her inability to
obtain a promotion are outside the scope of the agreement. The Agency
also states that Complainant’s allegations regarding the Agency's
alleged violation of an internal policy and an Executive Order are
outside the scope of the agreement and should also be denied.
In response to Complainant's claim that it breached the confidentiality
provision of the agreement, the Agency denies disclosing any information
in the agreement. The Agency states that although Complainant mentions
other coworkers knew the terms of the agreement, she does not name anyone
other than Person X. Moreover, the Agency notes that Complainant does not
name any Agency official who allegedly informed Person X about the details
of the settlement agreement. The Agency argues that Complainant's vague,
unsubstantiated claims from one co-worker fail to satisfy her burden
of proof demonstrating that the Agency violated the confidentiality
provisions of the agreement.
The Agency also states that Complainant did not support her claim that
the Agency lacked good faith, engaged in fraud or misrepresentation with
regard to executing the agreement. The Agency states Complainant did not
provide evidence regarding her claim of frustration of purpose regarding
her failure to obtain a promotion. With regard to her contention that the
Assistant Commissioner lacked the authority to enter the agreement on the
Agency’s behalf, the Agency states the agreement was signed by former
Assistant Commissioner of the Office of International Trade, who had the
authority to bind the Agency at the time of the agreement. With regard
to her claim of duress due to her ongoing financial issues, the Agency
notes there is no evidence that the Agency forced Complainant to sign the
agreement or violated her right to not enter into the agreement. Finally,
the Agency notes it offered Complainant the position specified in the
agreement and she accepted the offer and began working in that position.
ANALYSIS AND FINDINGS
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. Dep’t of Def., 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. Dep’t 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 O v. U.S. Postal Serv.,
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).
Title VII Claims
We note that in the present settlement agreement, Complainant settled
claims under both Title VII and the ADEA. Initially, we address
Complainant's contention that the Agency breached the settlement agreement
concerning her claims of discrimination under Title VII.
At the outset, we address Complainant's arguments that the June 16,
2009 settlement agreement is void. Despite Complainant's argument,
there is no indication the Agency entered the agreement in bad faith or
fraudulently induced her to enter the agreement through misrepresentation.
With regard to her claim that the Agency official signing the agreement
lacked the appropriate authority, we note the agreement was signed by the
Assistant Commissioner of the Office of International Trade, who had the
authority to bind the Agency at the time of the agreement. Moreover,
despite Complainant's claimed financial difficulties at the time,
there is no indication that the Agency placed Complainant under duress.
Finally, we find the settlement agreement does not violate public policy.
In the present case, Complainant failed to show that the Agency breached
the terms of the June 16, 2009 settlement agreement. According to
provision II, the Agency was required to present Complainant with a
conditional offer of employment for the position of Regulatory Auditor
at the GS-09 level. The agreement specified the offer was contingent
on Complainant completing all pre-employment requirements and stated the
offer was issued as part of the Agency's Federal Career Internship Program
(FCIP) whereby Complainant will be subject to a two-year probationary
period. The record reveals the Agency offered Complainant the Regulatory
Auditor GS-09 position and she began working in this position effective
October 13, 2009. Thus, we find the Agency complied with provision II
of the agreement.
Additionally, we find Complainant failed to show that the Agency
breached provision III.E. of the agreement. With regard to Complainant's
contention that Person X and other co-workers mentioned to her that they
knew about her previous EEO activity, we note she does not specifically
identify any Agency officials allegedly responsible for violating the
agreement’s confidentiality. Moreover, Complainant does not claim
that Person X told her that he learned of her agreement from an Agency
official. Additionally, we note Complainant does not identify who
the other co-workers were who allegedly stated that they knew about her
previous EEO activity. Thus, we find that Complainant failed to show that
the Agency breached the terms of the June 16, 2009 settlement agreement.
Finally, we note that Complainant's claim that she was not promoted to the
GS-11 level based on discrimination and in retaliation for protected EEO
activity is considered a subsequent act of discrimination. The record
reveals that Complainant contacted an EEO Counselor on January 3, 2011,
claiming she was subjected to discrimination and retaliation when she
was not promoted in October 2009. She was given a Notice of Right to
File a Discrimination Complaint regarding the failure to promote claim
on February 1, 2011.
ADEA Claim
Since the underlying complaint contains an allegation of age
discrimination, the Commission will analyze the impact Complainant's
allegation of age discrimination has on the settlement agreement.
The Older Workers' Benefit Protection Act (OWBPA) provides the minimum
requirements for a waiver of age discrimination claims under the ADEA.
Under OWBPA, a waiver is not considered knowing and voluntary unless, at
a minimum: (1) it is clearly written from the viewpoint of complainant;
(2) it specifically refers to rights or claims under the ADEA; (3)
complainant does not waive rights or claims arising in exchange for
the waiver; (4) valuable consideration is given in exchange for the
waiver; (5) complainant is advised, in writing, to consult with an
attorney prior to executing the agreement, and (6) 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). Here, the settlement agreement does not
mention the ADEA. The agreement is silent as to Complainant's rights
or claims under the ADEA. Additionally, the record does not support a
finding that Complainant had been given a reasonable period of time in
which to consider the settlement agreement. Therefore, we find that the
settlement agreement did not comply with the OWBPA's waiver requirements
for agreements settling age claims. See Sheehy v. National Security
Agency, EEOC Request No. 0520100403 (February 27, 2012).
In order to remedy Complainant, the Commission voids the settlement
agreement with respect to Complainant's ADEA claims only. See id. (citing
Oubre v. Entergy Operations Inc., 522 U.S. 422, 428 (1998) (failure
to comply with the OWBPA's stringent waiver safeguards will void the
settlement agreement only with regard to the ADEA claims)). Because the
evidence does not support a finding that Complainant's waiver of her
Title VII claims was defective, the settlement agreement, including all
payments made to or owing Complainant, remains in effect with regard
to those non-age based claims. See id. (citing Campo v. United States
Postal Service, EEOC Petition No. 03A20012 (August 27, 2002)).
Complainant is entitled to have her age based claim processed from the
point where processing ceased in June 2009. Therefore, this claim is
remanded for adjudication to the Hearings Unit of the New York District
Office.
If Complainant eventually prevails on her ADEA claim, the Agency may seek
to reduce her award by the benefits she received under the settlement
agreement. This Commission notes, as did the Supreme Court, that this
“may be complex where a release is effective as to some claims but
not as to ADEA claims.” Oubre at 428. We remind the parties that
compensatory damages and attorney's fees and costs are not available
under the ADEA. See Falks v. Department of the Treasury, EEOC Request
No. 05960250 (September 5, 1996).
CONCLUSION
Accordingly, the Agency’s decision finding no breach regarding the
resolution of Complainant's Title VII claims is AFFIRMED. However,
the Agency’s decision regarding Complainant's ADEA claim is VACATED
and the matter is REMANDED for further processing in accordance with
the Order herein.
ORDER
Within 15 days of receipt of this decision, the Agency shall notify the
Hearings Unit of the New York District Office to request the assignment
of an Administrative Judge to preside over Complainant's age based claim
consistent with this decision. A copy of the correspondence requesting
that the Hearings Unit assign an AJ shall be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (Z0610)
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
April 11, 2012
__________________
Date
2
01-2011-2007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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