0120073790
01-23-2009
Lemon L. Gully, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Lemon L. Gully,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073790
Agency No. 200L05982005102286
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 20, 2007, finding that complainant
had not been under duress when he signed the September 18, 2006 settlement
agreement (Agreement) into which the parties entered.
The Agreement settled seven then-pending EEO complaints, and provided,
in pertinent part, that complainant agreed to:
(1) Act on his right to representation by consulting with his attorney
before entering into this Agreement.
Furthermore, the parties both agreed that:
(2) This Agreement has been read by, understood by, and has been
freely entered into by both parties.
In October 20061, complainant notified the agency that he had signed
the Agreement under duress. In subsequent correspondence complainant
specifically alleged that shortly before a scheduled settlement
conference his initial attorney notified him that she would not be able
to represent him. See complainant's correspondence dated May 31, 2007.
Complainant alleged that he had to "struggle to find another attorney,"
id., and that the replacement attorney was not familiar with his case.
See id. Complainant further contends that he had been "traumatized,"
id., by the ongoing harassment that was the subject matter of one of
the underlying EEO complaints, and that he was "under duress," id.,
when he signed an "unfavorable settlement." Id. He contends that before
signing the Agreement he told his new attorney that he was not satisfied
with it but that his attorney told him "that it was a done deal and that
the (EEO Administrative Judge) could order" complainant to sign. Id.
In addition, complainant maintains, on the day he signed the agreement,
"I was not psychological [sic] capable of making a logical settlement
[sic]" and that he was under his physician's orders to be excused him
from work for two weeks due to stress and depression. Id. In addition,
complainant alleged that he had been denied due process when he signed
the agreement because the agency failed to take into account that one
of the underlying complaints included age as a basis of discrimination.
See id.
In its July 20, 2007 FAD, the agency concluded that complainant had not
been under duress when he signed the agreement. The FAD noted initially
that when a complainant alleging age discrimination, or reprisal for an
earlier age-based discrimination claim, seeks to enter into a settlement
agreement, the Older Workers Benefit Protection Act (OWBPA) applies.
Under OWBPA, the waiver requirements are stricter than normally required
for settlement of EEO complaints alleging non-age-related bases.
The FAD further noted that the Agreement in question sought to settle
seven pending EEO complaints brought by complainant under one Agreement.
However, only one of the seven EEO complaints included reprisal for an
earlier age-based claim of discrimination, while the remaining complaints
raised no age-related issues. The FAD agreed that, as regards the one
complaint that included reprisal for a prior age-based claim, the waiver
provisions of the Agreement did not meet the requirements of the OWBPA.
The agency therefore agreed to reopen that complaint and resume processing
at the point where it had ceased. The agency further found, however,
that the remaining six complaints did not include age as a basis of
discrimination, or reprisal for a prior age-based claim. Therefore,
the agency concluded, the waiver language that was included in the
decision, while not sufficient under OWPBA, was sufficient to satisfy
the requirements under EEO law for those six complaints. In addition,
the agency concluded, complainant had not shown that he had signed the
agreement under duress. Therefore, the agency found that, as regards
the Agreement's settlement of the six non-age-related complaints, the
Agreement was valid.
Complainant alleges that the agency erred and that the entire Agreement
is void. Specifically, complainant contends that where a settlement
agreement seeks to settle both age-based and non-age-based complaints,
a finding that the requirements of OWBPA were not met voids the entire
agreement, not just the portion settling the age-related complaints.
Complainant maintains that because the requirements of OWBPA were
triggered by one of the seven underlying complaints in the Agreement,
the Agreement is not rendered valid by removing the single offending
complaint from the Agreement. Instead, argues complainant, the clauses
are non-severable and the entire Agreement is void for failing to comply
with the waiver requirements of 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).
We note that OWBPA amended the 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 compliant is advised, in writing,
to consult with an attorney prior to executing the agreement; and the
complainant is given 'reasonable' period of time in which to consider
the agreement. 29 U.S.C. 626(f)(2). See Juhola v. Department of the Army,
EEOC Appeal No. 01934032 (June 30, 1994). We agree with the agency that
the waiver contained in the Agreement fails to meet these standards.
We note however, that the Commission has held that where a settlement
agreement seeks to settle more than one underlying complaint, the
Agreement is only void for failure to meet the waiver requirements of
OWBPA as to those complaints that invoke the ADEA. See Campo v. United
States Postal Service, EEOC Petition No. 0320020012 (August 27, 2002).
As to those complaints that do not invoke the ADEA, the Agreement is
still valid, absent a showing of duress. See id.
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 he was coerced into
signing the agreement. While complainant mentions that at the time of
the settlement hearing he was subject to ongoing harassment from his
supervisor, he has not articulated any conduct that reflects that he
was induced to sign the agreement because he was threatened with harm
or loss. Thus, the Commission determines that complainant has not met
his burden of establishing coercion.
Complainant further claims that he was under duress because of ongoing
harassment as well as the fact that his mother had recently passed away
shortly before he signed the agreement. He states that "on the day
of the settlement hearing, I had been out on sick leave suffering from
undue stress and mental depression," Complainant's appeal brief, p. 2,
and he further points to a Dr's note to support his argument. The note
in question, however, does not indicate whether complainant sought to
be excused from work due to a mental or emotional issue, or perhaps
a physical ailment or other reason. Furthermore, we note that the
note states that complainant would be out of work from August 30, 2006
and return to work on September 13, 2006. The Agreement, however, was
signed by complainant on September 18, 2006, five days after complainant
was cleared to return to work. Complainant, therefore, has failed to
meet his burden of establishing that he was incapacitated or mentally
deficient at the time he signed the settlement agreement.
Complainant maintains that his attorney was unfamiliar with his case.
We note, however, that a complainant "shall at all times be responsible
for proceeding with the complaint" whether or not the complainant
is represented by competent counsel. See 29 C.F.R. � 1614.605(e).
We further note that complainant signed the agreement that included the
clause stating that the "Agreement has been read by, understood by,
and has been freely entered into by both parties." Complainant now
apparently regrets signing the agreement because he feels that its
terms are not advantageous to his interests. However, 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).
Therefore, we find the Agreement to be void as it relates to the
settlement of the complaint under agency case No. 200L-0598-2006102632.
The remainder of the Agreement, however, remains valid, and we AFFIRM
the FAD.
ORDER (C0900)
The agency, if it has not already done so, is ordered to take the
following remedial action:
I. Within thirty (30) days of this decision becoming final, the
agency shall reopen the complaint under Agency No. 200L-0598-2006102632
and resume processing the complaint from the point where processing
ceased. The agency shall acknowledge to complainant that it has
reinstated and resumed processing of complainant's complaint. A copy
of the agency letter of acknowledgment must be sent to the Compliance
Officer as referenced below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (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
January 23, 2009
__________________
Date
1 The specific date is unclear in the record. A May 23, 2007 FAD that
was subsequently rescinded gives the date as October 27, 2006, while
the July 20, 2007 FAD gives the date as October 10, 2006.
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0120073790
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073790