Karen C. Pyrcz, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 19, 1999
01982855 (E.E.O.C. Nov. 19, 1999)

01982855

11-19-1999

Karen C. Pyrcz, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Karen C. Pyrcz, )

Complainant, )

)

v. ) Appeal No. 01982855

) Agency No. 97-1764

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

The Commission finds that the agency's February 12, 1999 letter of

determination dismissing Complainant's breach of settlement agreement

claim, is not proper pursuant to the provisions contained in 64

Fed. Reg. 37644, 37660 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.504.<1>

The record shows that on September 24, 1997, Complainant and the

agency reached a settlement agreement. Section 2a. of the settlement

agreement provided that the agency would �provide the complainant

with supervisor/management and/or leadership training as needed�.

Section 2b. of the agreement provided that: �[Complainant] will continue

to pursue her skills under the direction of Dr. [P]�.

By letter dated September 29, 1997, Complainant informed the Hospital

Director that she �was under duress, intimidated and coerced into the

signing the agreement in [her] EEO case�. Complainant then requested

to continue her EEO complaint with another EEO counselor. Complainant

further alleged that section 2b. of the settlement agreement had been

breached because her new position description provided that she would

be supervised by Dr. B, rather than Dr. P.

By letter dated January 28, 1998, the agency advised Complainant

that it had concluded that she had voluntarily signed the settlement

agreement. By letter dated February 12, 1999, the agency found that

the settlement agreement had not been breached. The agency noted that

while Complainant was still working under the supervision of Dr. P.,

her duties and responsibilities had changed and she would also report

to Dr. B. The agency further found that the agreement did not provide

that Complainant would only report to Dr. P.

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, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990). 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. United States Postal Service, EEOC Request No. 05931097 (April

29, 1994)(citing Hyon O 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, 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)).

In the present case, we note that when the Complainant pursued the

EEO complaint process that led to the settlement agreement, one of the

bases of alleged discrimination that she identified was age. The Older

Worker's 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 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 this case, the settlement agreement did not specifically provide

that the Complainant was waiving her 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.

Accordingly, the agency's final determination is REVERSED. The complaint

is REMANDED for further processing in accordance with this decision and

applicable regulations.

ORDER

The agency is ORDERED to resume processing the complaint from the point

where processing ceased. The agency shall acknowledge to the Complainant

that it has resumed processing of the complaint within thirty (30)

calendar days of the date this decision becomes final. A copy of the

agency's letter of acknowledgment to Complainant must be sent to the

Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

November 19, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

____________________

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.