01A42242_r
12-29-2004
Lee A. Black, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Lee A. Black v. Department of the Treasury
01A42242
December 29, 2004
.
Lee A. Black,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A42242
Agency Nos. 00-3272, 01-1005T, 01-1005TS,
01-1078T, 01-1078TS, 01-1148T, 01-1148TS, 02-3001,
02-3001S, 02-3042, 02-3042S, 02-3080, 02-3081, 02-3082<1>
DECISION
Complainant filed an appeal with this Commission regarding the terms of
the June 25, 2002 settlement agreement into which the parties entered.
The Commission observes that complainant initially notified the agency of
his allegations, concurrent with his notice to the agency of the instant
appeal on November 8, 2002. The agency responded by filing a brief with
the Commission on February 19, 2003. In light of the agency's response
to complainant's appeal statement and in the absence of any agency
decision, we deem the agency to have determined that the settlement
agreement is valid.
The settlement agreement provided, in pertinent part, that:
(1) The [agency] will:
Pay the Complainant the lump sum of $2,000, subject to any applicable
state and federal taxes.
Take action to issue payment no later than 30 calendar days after the
date this agreement is signed by both parties.
. . . .
In consideration for the [agency's] compliance with the provisions of
paragraph 1, the Complainant agrees:
To withdraw all of the above-referenced complaints with prejudice.
The Complainant's signature on this agreement will serve as withdrawal
of those complaints.
. . . .
Not file an application for employment with the [agency] or any of its
Bureaus or Offices, and to withdraw any pending applications, if any.
Not to institute any further legal and/or administrative appeals
on the matter(s) raised in the above-referenced complaints. This
includes a specific waiver of rights or claims arising out of the
Age Discrimination in Employment Act; however, it does not [affect]
new rights or claims arising subsequent to this agreement.
By signing this agreement, Complainant waives all rights and claims under
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
as to the above referenced complaints. To ensure compliance with
the requirements of the Older Workers Benefit Protection Act (OWBPA)
29 U.S.C. 626(f), the Complainant, by signing this agreement, agrees
with the following. The Complainant:
Understands that this waiver is part of an agreement between the
complainant and the [agency];
Has fully read and understood the agreement;
Intends to waive any and all rights or claims under the ADEA as to
matters raised in the above-captioned complaint(s) as of the date of
the execution of this agreement;
Does not waive any rights or claims that may arise after the date that
this agreement has been executed;
Is waiving rights or claims in exchange for valuable consideration
in addition to anything of value to which the Complainant is already
entitled;
Has been advised to consult with an attorney before executing this
agreement; and
Has been given a reasonable period of time within which to consider
this agreement.
In his appeal, complainant requests that the Commission order the agency
to reopen his complaints and to continue processing thereof, on the
grounds that the agency failed to include in the settlement agreement,
a provision whereby complainant could rescind the agreement within
7 days and also allow him to have 21 days to review the agreement.
Alternatively, complainant asks that the Commission order the agency to
remove the lifetime ban that prohibits complainant from submitting an
application for employment with the agency and increase the settlement
award by $1,500; or, pay him $13,500, in addition to the $2,000 already
provided, if the lifetime ban is not removed. Complainant claims that
the settlement agreement violates the Older Workers' Benefit Protection
Act (OWBPA) and that he was not aware of his rights under OWBPA at the
time he signed the settlement agreement.
In its February 19, 2003 response to complainant's appeal, the agency
concluded that complainant's appeal is untimely, and also that his
request should be denied. The agency found that complainant was given
a reasonable time to consider the agreement and that the agreement is
not in violation of the OWBPA.
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). 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. 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,
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).
The OWBPA amended the ADEA, effective October 16, 1990, and provides the
minimum waiver requirements for ADEA claims. To meet the standards of the
OWBPA, if applied to the federal administrative process, a waiver of a
complainant's rights to pursue relief for his claims of discrimination
based on age, such as that contained in the settlement agreement at
issue herein, would not be considered knowing and voluntary unless at
a minimum: the waiver is clearly written, from the viewpoint of the
employee; the waiver specifically refers to rights or claims under the
ADEA; the employee does not waive rights or claims following execution of
the waiver; valuable consideration is given in exchange for the waiver;
the employee is advised in writing to consult with an attorney prior
to executing the agreement; and the employee is given a "reasonable"
period of time in which to consider the settlement agreement. 29 U.S.C. �
626(f)(2). See Juhola v. Department of the Army, EEOC Appeal No. 01934032
(June 30, 1994).
Here, the settlement agreement of June 25, 2002, specifically refers to
complainant's claims based upon age. Additionally, the agency found,
and we agree, that complainant had an opportunity to consult with an
attorney from May 7, 2002, when he received the first draft of the
proposed settlement agreement and July 2, 2002, the date by which the
agency last requested that complainant return the signed agreement,
with only minor modifications by the agency, if he intended to settle his
complaints as agreed. We therefore find that complainant had been given a
reasonable period of time in which to consider the settlement agreement
when he signed it on June 25, 2002 and returned it to the agency.
We further find (and complainant does not dispute) that complainant's
decision to enter into the settlement agreement dated June 25, 2002,
was both knowing and voluntary under the OWBPA. Accordingly, we find
that the settlement agreement of June 25, 2002 does not violate the OWBPA.
The Commission finds therefore that the settlement agreement is
enforceable, that complainant received consideration pursuant to its
terms, and there is no basis for voiding the agreement or reinstating
the settled matters.
The agency's determination that the agreement is valid is AFFIRMED.
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 (S0900)
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 (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
December 29, 2004
__________________
Date
1The settlement agreement resolved �all
administrative complaints filed by complainant from September 26,
2000 until the date this agreement is signed by both parties...� The
agreement was signed by the agency's representative on June 20, 2002,
and last signed by complainant on June 25, 2002.